UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE  CHICAGO  SOCIETY 


OF 


ADVOCATES 


1915 


CK,-t»v    Q^eh,     of  M\>*<*fa- 


BOOK    OF 


THE  CHICAGO  SOCIETY 


OF 


ADVOCATES 


CHICAGO 
1915 


6A 
CAlZ&l 

IS  15 


Copyright 

by 

The  Chicago  Society 

of 

Advocates. 

1915. 


q  2. 
t-u-tf 


HISTORICAL  SKETCH. 

There  had  been  some  discussion  of  the  matter  for  several 
years  in  the  city  of  Chicago,  before  an  invitation,  dated  June 
3,  1914,  was  addressed  to  fifty-sis  trial  lawyers  representing 
with  their  firms  about  one  hundred  of  the  most  active  practi- 
tioners in  the  city,  and  to  the  Chief  Justices  of  the  nisi  priiis 
courts  to  meet  at  dinner  on  Wednesday  evening,  June  10,  1914, 
at  the  Chicago  Club  to  consider  the  subject  stated  in  the  invi- 
tation as  follows : 

' '  A  discussion  at  a  recent  meeting  of  the  Chicago  Bar  Asso- 
ciation has  suggested  that  perhaps  it  would  be  worth  while 
to  effect  some  form  of  voluntary  organization  among  those 
lawyers  of  this  city  who  devote  a  large  portion  of  their  time 
to  the  trial  of  causes,  whether  at  nisi  prius  or  on  appeal,  with 
a  view  of  improving  themselves  and  their  juniors,  rising  at 
or  coming  to  the  bar,  in  the  art  of  advocacy,  to  the  end  that 
the  trial  bar  may  acquire  an  increase  of  savoir  faire  and 
standing  and  the  public  and  the  bench  a  clearer  knowledge 
of  its  ability  and  character,  the  ultimate  purpose  being,  of 
course,  the  better  and  speedier  administration  of  justice." 

There  were  present  at  the  meeting  about  forty  members 
of  the  bar  and  also  Chief  Justices  Petit,  Baldwin,  Brentano 
and  Olson  and  Mr.  Justice  Mack.  Mr.  Justice  Carter  of  the 
Supreme  Court  was  unable  to  be  present  as  the  Court  was  in 
session  but  sent  an  encouraging  letter. 

Mr.  Jacob  M.  Dickinson  presided  and  after  full  debate  the 
following  resolution  was  adopted. 

"Resolved:  That  it  is  both  timely  and  expedient  to  form 
an  organization  of  those  members  of  the  bar  who  do  or  desire 
to  devote  a  substantial  portion  of  their  time  to  the  trial  of 
causes  either  in  courts  of  the  first  instance  or  on  appeal,  and 
that  a  committee  of  seven  be  appointed  by  the  Chair  to  per- 
fect the  details  of  such  an  organization  and  report  to  the  in- 


vited  members  thereof  in  time  for  the  opening  of  the  courts 
in  September  next." 

Pursuant  to  this  resolution  the  Chairman  appointed  the 
following  Committee  on  Organization :  Mr.  Eugene  E.  Prus- 
sing,  Chairman,  Mr.  A.  M.  Kales,  Hon.  Harry  Olson,  Mr. 
Fletcher  Dobyns,  Hon.  C.  S.  Cutting,  Mr.  Fred  D.  Silber,  Mr. 
Amos  C.  Miller. 

The  Committee  prepared  a  constitution  and  thereupon  is- 
sued an  invitation  which  recited  the  foregoing  and  concluded 
as  follows: 

"The    Committee    has    formulated    a    Constitution    for    a 

CHICAGO  SOCIETY  OF  ADVOCATES 

and  selected  a  list  of  about  200  members  of  the  bar  to  be  in- 
vited to  become  Charter  members. 

"In  extending  this  invitation  to  you  the  Committee  sub- 
mits the  proposed  Constitution,  and  requests  your  attend- 
ance at  a  meeting  to  complete  the  organization,  to  be  held 
Thursday  evening,  October  12,  1914,  at  6 :30  P.  M.  at  the  Mid- 
day Club,  in  the  First  National  Bank  Building." 

The  meeting  of  October  12,  1914,  was  attended  by  sixty 
members  of  the  bar  and  twenty  more  had  accepted  member- 
ship but  were  not  present.  The  proposed  constitution  was 
subjected  to  a  very  interesting  and  complete  discussion  in 
which  nearly  all  present  participated  and  in  its  revised  form 
was  unanimously  adopted. 

The  Committee  on  Organization  was  continued  and  directed 
to  submit  the  revised  constitution  to  those  invited  to  become 
Charter  members  with  a  call  for  a  subsequent  meeting. 

On  Monday,  November  9,  1914,  at  6 :30  P.  M.,  at  the  Mid-day 
Club  the  next  meeting  was  held,  at  which  105  were  reported 
as  having  accepted  the  invitation  to  membership.  The  revised 
constitution  was  adopted  and  will  be  found  on  page  15.  A 
Board  of  Governors  was  duly  elected  and  the  organization 
completed.  The  meeting  was  addressed  by  Mr.  Justice  Wil- 
liam Renwiek  Riddel],  of  the  Supreme  Court  of  Ontario,  who 


spoke  upon  the  legal  profession  of  Ontario  and  particularly  on 
the  relation  of  barrister  and  solicitor  there.  The  address  will 
be  found  on  page  35. 

The  Board  of  Governors  met  on  November  14,  1914,  and 
organized  by  selecting  its  officers  and  a  Committee  on  Pro- 
gram. 

Mr.  Albert  M.  Kales  has  prepared  and  published  in  the 
Illinois  Law  Review  for  January,  1915,  an  article  on  "The 
Economic  Basis  for  a  Society  of  Advocates  in  the  City  of 
Chicago,"  which  will  be  found  on  page  21. 


BOARD  OF  GOVERNORS. 


FOR  ONE  YEAR. 

James  G.  Condon. 
Henry  R.  Platt. 


for  two  years. 

Harry  Olson. 
George  H.  Peaks. 


FOR  THREE  YEARS. 

Fred  D.  Silber. 
Albert  M.  Kales. 


FOR  FOUR  YEARS. 

Andrew  R.  Sheriff. 
Amos  C.  Miller. 


FOR  FIVE  YEARS. 
SlGMUND    ZEISLER. 

Eugene  E.  Prussing. 


OFFICERS. 

1914—1915. 

Eugene  E.  Peussing,  President. 
Room  1122,  Merchants  Loan  &  Trust  Bldg. 

Albert  M.  Kales,  Vice  President. 
Room  1616,  Marquette  Bldg. 

"William  R.  Medakis,  Treasurer. 
Room  1812,  Harris  Trust  Bldg. 

Herbert  Harley,  Secretary. 
Room  340,  National  Life  Bldg. 


CHAETER   MEMBERS. 


Adams,  Elmer  H 1100  American  Trust  Bldg. 

Ahrens,   John   P 822  Reaper  Block 

ApMadoe,    W.    Tudor 1542  First  National  Bank  bldg. 

Ball,    Farlin    H 808  Title  &  Trust  Bldg. 

Barton  George   P 1445  Monadnoek  Bldg. 

Beckwith,    J.    W 810  Title  &  Trust  Bldg. 

Brown,  Fred  A 1518  Otis  Bldg. 

Brown,  Wm.,  Jr 1220  Stock  Exchange  Bldg. 

Buckingham,  George   T 9th  Fl.,  226  S.  La  Salle  St. 

Burling,   Edward  B 1201-203  S.  Dearborn  St. 

Busch,  Francis   X 830  National  Life  Bldg. 

Calhoun,   Wm.   J 940  The  Rookery 

Carter,  Allen  J 826  Federal  Bldg. 

Childs,   Robert  W 826  Federal  Bldg. 

Cleveland,  Chester  E 1546  American   Trust  Bldg. 

Cohen,   Lawrence   A 823  Chamber   of  Commerce   Bldg. 

Condon,   James   G 722  First   National   Bank   Bldg. 

Cook,  Wells   M 916  New   York   Life   Bldg. 

Davis,  Brode  B 1011  The  Rookery 

Dickinson,   J.    M 800  The   Temple 

Dobyns,  Fletcher 1060  The  Rookery 

Doyle,   Wm.   A 1206  First  National  Bank  Bldg. 

Dunne,  Ed.  F.,  Jr 1905  Conway  Bldg. 

Finn,   Richard   J 1217  Ashland  Block 

Folsom,   Richard   S 1822-72  W.  Adams  St. 

Foreman,   Milton   J 817  First   National   Bank  Bldg. 

Foster,   Stephen  A 1414  Monadnoek  Bldg. 

Godman,  Elwood  G 808  Marquette  Bldg. 

Gorham,   Sydney  S 1021  New  York   Life   Bldg. 

Greenacre,    I.    T 404-32  W.  Washington  St. 

Gresham,    Otto 1201  Title  &  Trust  Bldg. 

Grosscup,   Peter   S 712  New  York  Life  Bldg. 

Guerin,  M.  Henry 1406  Tribune  Bldg. 

Hale,   Wm.   B 1616  Marquette  Bldg. 

Hall,  James  Parker Law   School,   University   of   Chicago. 

Harpham,  Edwin  L 1016  Insurance  Exchange 

Harley,    Herbert 340-29  S.  La  Salle  St. 

Hart,   Louis   E 959  The  Rookery 

Hay,   Wm.   Sherman 1220  Stock   Exchange  Bldg. 

Helmer,   Frank    A 1217-23  Westminster  Bldg. 

11 


12 

Holden,   Chas.   K 1230  Tribune  Bldg. 

Holdom,  Jesse 1008  Harris  Trust  Bldg. 

Holt,   Eobt.    N 720  Westminster  Bldg. 

Hopkins,  Albert    L 826  Federal  Bldg. 

Hopkins,  John    L 1407  Marquette  Bldg. 

Hume,    Prank    L 1702  Majestic  Theatre  Bldg. 

Ickes,    Harold   L 1817  Harris  Trust  Bldg. 

Jeffery,  Jas.  C 1444  First  National  Bank  Bldg. 

Jones,   W.   Clyde 1610  Ft.  Dearborn  Bldg. 

Kales,   Albert   M 1616  Marquette  Bldg. 

Kehoe,  John  E 1334  First   National   Bank   Bldg. 

Kremer,  Chas.  E 1012  Insurance  Exchange 

Lamb,  Win.  E 1414  Monadnock  Bldg. 

Latham,    Carl    R 1104  Corn  Exchange  Bank  Bldg. 

Lee,    Blewett    135  E.  11th  Place 

Lee,  John  H.   S 905  First    National    Bank    Bldg. 

Loesch,  Frank  J 1540  Otis  Bldg. 

Maher,    Edward 1520  Unity  Bldg. 

Marston,    Thomas   B 901   Tacoma  Bldg. 

Marx,   Fred    Z 1310  Title   &   Trust  Bldg. 

Mason,   George   H 1201   Title  &  Trust  Bldg. 

Mayer,    Elias 1633  First  National  Bank  Bldg. 

Mayer,    Levy 2010-208  S.  La  Salle  St. 

Medaris,  Wm.   E 1812  Harris  Trust  Bldg. 

Mergentheim,   Morton   A 833  First  National  Bank   Bldg. 

Meyer,   Carl 2010-208  S.  La  Salle  St. 

Miller,   Amos   C 1018  New  York  Life  Bldg. 

Montgomery,    John    R 959  The  Rookery 

Moses,  Jos.   W 600  The    Temple 

MacChesney,    Nathan    William 1321  Stock  Exchange  Bldg. 

McClory,   Fred   S 804  Straus  Bldg. 

McCulloch,  Frank   H 1104  Merchants    Loan    &    Trust    Bldg. 

MeEwen,   Willard   M 1630  Tribune  Bldg. 

McKenzie,  Wm.   D 1768-208  S.  La  Salle  St. 

McKinney,    Hayes 709  Harris   Trust   Bldg. 

Newman,   Jacob 823  Chamber  of  Commerce  Bldg. 

Olson,  Judge  Harry 917  City  Hall 

Packard,    George 1522  First  National  Bank  Bldg. 

Page,    Cecil 1322  First  National  Bank  Bldg. 

Page,  S.   S 1322  First  National  Bank  Bldg. 

Peaks,    George    H 1701  Borland  Bldg. 

Piatt,   Henry  R 2010-208  S.  La  Salle  St. 

Poppenhusen,   C.   H S23  Chamber  of  Commerce 

Trussing,    Eugene   E 1122  Merchants    Loan    &    Trust   Bldg. 


13 

Ratbbone,   Henry    R 1309  Title  &  Trust  Bldg. 

Redfield,    Robert 1309  Stock  Exchange  Bldg. 

Reichmann,    A.    F 1501  Corn   Exchange   Bank   Bldg. 

Richards,  John  T 1124-72  W.  Adams  St. 

Riehberg,    Donald    R 1817  Harris   Trust   Bid,!.'. 

Robbins,    Henry    S 814  Home  Insurance  Bldg. 

Rosenthal,   James 1104  Rector  Bldg. 

Rush,   G.   Fred 1 110  Title  &  Trust  Bldg. 

Schlesinger,    Elmer 2010-208  S.  La  Salle  St. 

Sears,   Nathaniel    C 1500  First  National  Bank  Bldg. 

Sexton,   Wm.   H 1309  Stock  Exchange  Bldg. 

Shannon,   Angus   R 500  Portland  Block 

Sheriff,    Andrew   R 1060  The  Rookery 

Silber,   Fred    D 614  Home  Insurance  Bldg. 

Sims,  Edwin  W 808  Marquette  Bldg. 

Smoot,    H.    E 1321  Stock   Exchange   Bldg. 

Taylor,    Thomas,   Jr 1209  First   National  Bank  Bldg. 

Thomas,    Morris    St.    P 306  Portland  Block 

Tolman,   Edgar  B 1309  Stock  Exchange  Bldg. 

Yon  Ammon,  Fred  E 901   Title   &    Trust  Bldg. 

Welch,  Albert  G 808  Marquette  Bldg. 

Wetten,  Emil  C 800  The  Temple 

Wigmore  John  H 31  West   Lake  St. 

Wood,   Ira   C 821  Merchants   Loan    &    Trust    Bldg. 

Wormser,   Leo   F 1400  Fort  Dearborn  Bldg. 

Wright,    Arthur    B 1122-112  W.  Adams  St. 

Young,   Hobart   P 1104  Corn   Exchange  Bank   Bldg. 

Zane,  John   M 709  Harris  Trust  Bldg. 

Zeisler,   Sigmund 906  Straus  Bldg. 


CONSTITUTION 


ARTICLE  I. 

An  association  of  members  of  the  bar  of  Chicago,  Illinois, 
is  hereby  formed  to  promote  increased  efficiency  on  the  part 
of  those  who  practice  as  advocates,  and  to  maintain  a  standard 
of  their  professional  conduct. 

ARTICLE  II. 

The  name  of  the  association  shall  be  ' '  The  Chicago  Society 
of  Advocates. ' ' 

ARTICLE  III. 

The  membership  of  the  Society  shall  consist  of  active,  asso- 
ciate and  honorary  members. 
Active  members  must  fulfill  the  following  requirements: 

1.  They  must  have  been  admitted  to  the  practice  of  law  in 
this  State ; 

2.  Have  practiced  for  at  least  five  years  in  this  State  or 
elsewhere,  or  part  of  the  time  in  this  State  and  part  of  the 
time  elsewhere,  and  be  engaged  in  the  actual  practice  of  law 
in  this  County ; 

3.  Be  of  good  moral  character ;  and 

•i.  During  the  period  of  two  years  preceding  application 
for  membership,  must  have  spent  a  substantial  portion  of 
their  time  in  the  trial  of  causes,  either  in  the  Courts  of  first 
instance  or  on  appeal ;  and 

5.  Must  have  obtained  a  creditable  standing  in  the  per- 
formance of  such  work. 

15 


16 

Associate  members: 

The  Board  of  Governors  may,  by  the  unanimous  vote  of 
its  members  (not  less  than  eight)  present  at  any  of  its  meet- 
ings, elect  any  legal  educator  of  distinction  resident  in  this 
State,  an  associate  member  of  the  Society. 

Honorary  members: 

Iu  case  any  member  of  the  Society  shall  become  a  judge 
of  any  Court  of  record,  such  member  shall  become  an  honor- 
ary member  of  the  Society.  Whenever  any  such  honorary 
member  shall  cease  to  be  a  judge  as  aforesaid,  he  shall  be 
restored  to  active  membership  in  the  Society.  The  Board  of 
Governors  may  also  by  the  unanimous  vote  of  its  members 
(not  less  than  eight)  present  at  any  of  its  meetings,  elect  any 
member  of  the  Society  who  has  attained  a  pre-eminence  in 
the  profession  or  distinguished  himself  in  the  public  service, 
and  who  shall  have  permanently  retired  from  active  practice, 
an  honorary  member  of  the  Society. 

Charter  members: 

This  Society  has  been  organized  by  a  Committee  appointed 
at  a  meeting  held  at  the  Chicago  Club  on  June  10,  1914.  This 
Committee  has  invited  a  number  of  members  of  the  bar  to 
become  Charter  members  of  the  Society.  An  acceptance  of 
such  invitation,  prior  to  November  10,  1914,  will  be  equiva- 
lent to  an  election. 

ARTICLE  IV. 

Nominations  for  Membership. 

Nominations  for  membership  shall  be  made  in  writing  to 
the  Board  of  Governors,  under  such  forms  and  regulations 
as  it  may  from  time  to  time  prescribe  and  shall  be  submitted 
to  the  membership  of  the  Society  by  notice,  at  least  ten  days 
before  being  voted  upon  by  the  Board.  Election  shall  require 
at  least  eight  votes  of  the  membership  of  the  Board.  The 
name  of  the  person  elected  shall  be  placed  upon  the  member- 
sbip  list  and  reported  to  the  members  of  the  Society. 


17 

ARTICLE  V. 
Board  of  Governors. 

The  general  conduct  of  the  affairs  of  the  Society,  and  the 
exercise  of  its  powers  is  hereby  committed  to  a  Board  of  Gov- 
ernors of  ten  members,  who  shall  be  elected  by  the  members 
of  the  Society  by  ballot,  by  mail,  jnst  before  the  annual  meet- 
ing in  June,  under  rules  to  be  fixed  by  the  Board,  and  shall 
hold  office  as  follows: 

Of  the  first  Board,  two  shall  hold  office  for  one  year,  two 
for  two  years,  two  for  three  years,  two  for  four  years,  and 
two  for  five  years ;  and  the  successors  of  each  class  shall  hold 
office  for  five  years. 

The  election  of  the  first  Board  shall  take  place  immediately 
after  the  organization  of  the  Society,  under  the  direction  of 
the  Organization  Committee,  and  the  terms  of  its  respective 
members  shall  expire  in  June  of  the  five  years  following. 

ABTICLE  VI. 

Powers  of  the  Board. 

The  Board  of  Governors  shall  have  power,  among  other 
things : 

(a)  To  enact,  alter,  and  amend  the  by-laws  of  the  Society, 
and  to  elect  a  president  and  vice-president  from  their  number, 
and  a  secretary  and  treasurer  from  the  membership  of  the 
Society,  and  to  define  their  duties  and  alter  the  same  from 
time  to  time;  and  to  fill  all  vacancies  in  the  membership  of 
the  Board  from  the  time  such  vacancies  shall  occur  until  the 
next  annual  meeting  of  the  Society. 

(b)  To  take  such  steps  as  they  may  deem  expedient  and 
proper  to  carry  out  the  purposes  of  the  Society. 

(c)  To  make  and  enforce  rules  of  conduct  for  the  members 
of  the  Society,  and  to  promote  the  observance  of  such  rules 
by  all  members  of  the  bar  practicing  as  advocates. 

(d)  To  investigate,  and  upon  due  notice  and  opportunity 
to  be  heard,  to  determine  all  complaints  against  members  of 
the  Society,  and  to  admonish,  discipline  or  expel  members 


18 

according  to  their  judgment  by  a  vote  of  not  less  than  eight 
members  of  the  Board, 

(e)  Provided,  however,  that  upon  the  petition  of  any 
twenty  members  of  the  Society,  any  such  action  taken  by  the 
Board  of  Governors  shall  be  submitted  by  such  Board  to  the 
vote  of  the  Society  as  a  whole  and  in  respect  thereto  the  action 
of  the  Society  and  of  the  Board  shall  be  determined  by  the 
result  of  such  vote. 


ARTICLE  VII. 

Special  Duty  of  Advocates. 

It  shall  be  the  duty  of  members  of  the  Society  scrupulously 
to  respect  the  clientele  of  lawyers  employing  them  and  not 
to  avail  themselves  of  any  opportunity  to  win  such  clients 
to  themselves. 


ARTICLE  VIII. 

Meetings. 

The  Society  shall  hold  an  annual  meeting  on  the  second 
Tuesday  of  June  in  each  year,  and  quarterly  meetings  on  the 
second  Tuesdays  of  September,  December,  and  March,  at  six 
o'clock,  P.  M. 

Special  meetings  may  be  called  by  a  majority  of  the  Board 
of  Governors,  or  the  president,  in  their  discretion. 

ARTICLE  IX. 

Relations  to  Other  Organizations. 

Active  relations  with  Courts,  Local,  State,  and  National 
bar  associations  and  similar  organizations,  and  the  law  schools 
in  this  State  shall  be  established  for  the  purpose  of  aiding 
in  the  proper  training  of  advocates,  the  administration  of 
justice,  and  the  furtherance  of  legislation  to  these  ends. 


19 

AETICLE  X. 

Fees  and  Dues. 

The  initiation  fee  for  active  and  associate  members  shall 
be  ten  dollars,  which  shall  cover  the  dues  until  the  next  an- 
nual meeting.  Thereafter  the  annual  dues  of  each  active  and 
associate  member  shall  be  such  sum,  not  to  exceed  ten  dollars, 
as  the  Board  of  Governors  shall  from  time  to  time  prescribe, 
and  shall  be  payable  between  October  1st  and  December  31st 
of  each  year. 

AETICLE  XL 

Amendments. 

This  constitution  may  be  altered,  amended  or  revised  by 
a  two-thirds  vote  of  the  members  present  at  any  meeting,  if 
notice  of  the  proposed  action  is  given  at  a  previous  meeting, 
and  also  in  the  notice  of  the  meeting  at  which  such  vote  is 
taken. 


THE  ECONOMIC  BASIS  FOR  A  SOCIETY  OF  ADVO- 
CATES IN  THE  CITY  OF  CHICAGO. 

By  Albert  M.  Kales.1 

"Wherever  competition  is  free  and  easily  started,  no  busi- 
ness enterprise  can  live  if  conducted  in  a  wasteful  and  ineffi- 
cient manner.  Waste  and  inefficiency  puts  up  the  price  and 
then  someone  who  can  render  the  same  service  at  a  less  cost 
through  achieving  greater  efficiency  and  eliminating  waste, 
will  render  better  service;  at  a  less  cost.  If  the  waste  and  in- 
efficiency be  very  great  and  cannot  be  overcome  by  those  first 
in  the  business,  the  efficient  competitor  who  eliminates  the 
waste  will  secure  the  business.  Thereafter  he  will  compete 
only  with  such  others  as  are  able  to  do  the  same  business  with 
approximately  the  same  efficiency  and  the  same  elimination  of 
waste. 

These  simple  principles  are  applicable  in  the  legal  profes- 
sion to  the  same  extent  as  in  business.  If  lawyers  are  too 
inefficient  as  a  class  and  too  wasteful,  the  result  is  a  high  cost 
to  the  public  for  their  services.  Whenever  this  situation 
arises  with  regard  to  any  class  of  legal  business  which  can 
be  isolated  we  may  expect  to  find  some  group  of  men  coming 
forward  to  do  that  class  of  business  more  efficiently  and  with 
less  waste.  By  this  means  they  will  render  better  service  to 
the  public  at  less  cost.  In  consequence  they  will  secure  the 
larger  part  of  this  class  of  business.  This  is  precisely  what 
has  been  happening  during  the  last  twenty  or  thirty  years. 

Take  the  case  of  the  abstract,  real  estate  title  and  convey- 
ancing business.  This  was  once  done  entirely  by  lawyers. 
Much  of  it  was  done  by  individual  lawyers  or  firms  with  a  so- 
called  general  practice.    As  the  bulk  of  this  business  increased 


1.  Of  the  Chicago  Bar  and  Professor  of  Law  in  Northwestern  University. 
Originally  written  for  the  Illinois  Law  Journal  and  published  in  the  Jan- 
uary,  1915,  issue. 

21 


22 

the  spreading  of  it  over  the  bar  at  large  resulted  in  inefficiency 
and  in  great  waste,  and  a  consequently  high  cost  to  the  public. 
Every  title  had  to  be  examined  anew  upon  every  transfer. 
One  lawyer,  to  protect  himself  from  subsequent  examiners, 
had  to  make  so  many  objections  that  it  was  difficult  for  the 
client  to  tell  whether  to  go  ahead  or  to  back  up.  There  was  no 
financial  responsibility  among  the  lawyers  for  their  opinions. 
The  lawyer  who  examined  titles  probably  was  personally  en- 
gaged in  other  branches  of  legal  business.  Here,  then,  was  a 
large  volume  of  profitable  law  business  which  could  be  isolated 
and  handled  by  itself  and  in  which  the  application  of  the  most 
elementary  principles  of  business  efficiency  would  improve 
the  service  to  the  public  and  greatly  reduce  the  cost,  while 
at  the  same  time  leaving  a  handsome  margin  for  profit.  What 
was  the  result?  A  few  men  saw  the  opportunity  presented 
by  the  weak  position  economically  of  the  abstract  and  title 
business  in  the  hands  of  the  lawyers.  They  brought  together 
abstractors,  a  clerical  force,  lawyers  and  executive  talent  in 
a  single  corporation.  The  work  was  properly  subdivided, 
specialized  and  capital  invested  as  an  insurance  fund.  The 
making  of  abstracts  was  highly  specialized  with  resulting 
efficiency  and  economy.  The  examinations  of  title  were  spe- 
cialized. The  records  kept  prevented  any  duplication  of  ex- 
aminations. The  special  talents  of  special  lawyers  were  en- 
gaged for  the  specially  difficult  cases.  Ample  financial  re- 
sponsibility for  opinions  rendered  was  provided.  Along  with 
the  abstract  and  title  business  naturally  sprang  up  a  trust 
business,  an  escrow  business,  a  real  estate  agency  business 
and  a  mortgage  loan  business. 

Inevitably  the  abstract  and  title  business  has  been  trans- 
ferred to  the  title  companies  and  finally  has  come  into  the 
hands  of  one  title  company.  Its  only  competitor,  is  the  re- 
corder, operating  under  the  Torrens  Act.  The  success  of  an 
efficiently  managed  title  company  was  assured  so  far  as  its 
competition  with  lawyers  was  concerned,  from  the  very  start. 
The  bar  in  general  has  been  obliged  to  give  up  the  abstract 
and  title  business.  Those  lawyers  who  individually  are  still 
engaged  in  that  line  of  work  act  only  in  special  cases  where 


23 

■special  talents  are  required.  The  general  mass  of  convey- 
ancing business  is  clone  by  the  title  company.  It  is  incon- 
ceivable that  any  one  at  this  day  should  seriously  argue  in 
favor  of  the  disruption  of  the  title  company  and  the  spreading 
of  its  business  over  the  bar  at  large.  To  take  such  a  step 
would  be  to  exchange  efficiency  and  elimination  of  waste  for 
a  most  wasteful  and  inefficient  system  of  rendering  a  service 
to  the  public.    The  public  would  as  soon  go  back  to  candles. 

The  same  thing  has  happened  in  the  field  of  handling  trust 
-estates  and  estates  of  deceased  persons.  Here  also  was  a  class 
of  business  entirely  in  the  hands  of  lawyers  thirty  years  ago. 
It  was  handled  inefficiently  and  wastefully.  It  was  inefficient 
because  often  handled  along  with  a  great  deal  of  other  mis- 
cellaneous business.  There  was  too  much  duplication  of  ef- 
fort. The  proper  preparation  for  making  investments  and 
•caring  for  one  good-sized  estate  might  be  applied  to  a  hun- 
dred different  estates.  It  would  be  less  wasteful  for  one  man 
to  do  this  work  for  a  hundred  estates  than  for  a  hundred  law- 
yers in  general  practice  to  do  it  for  each  one  of  a  hundred 
•estates.  Then  there  was  lack  of  financial  responsibility. 
"What  happened?  Again,  far-seeing  men  observed  that  here 
was  a  branch  of  law  business  that  could  be  isolated  by  itself 
and  handled  more  efficiently  and  with  less  waste  and  at  the 
same  time  with  complete  financial  responsibility  and  still  leave 
a  handsome  margin  of  profit.  Hence  the  trust  company.  It 
concentrates  one  class  of  law  business  in  a  few  hands.  It 
uses  the  entire  time  of  lawyers  for  its  routine  law  business. 
It  has  full  financial  responsibility  and  by  specialization  of 
effort  on  the  business  and  administrative  side  uses  a  vast 
amount  of  information  and  a  well-developed  judgment  for  a 
great  many  cases.  Naturally  the  bulk  of  this  business,  and 
particularly  that  which  from  the  size  of  the  estates  is  valuable, 
has  passed  into  the  hands  of  the  trust  companies.  The  pub- 
lic would  hardly  consider  again  scattering  the  trust  business 
among  the  lawyers  at  large. 

It  may  be  said  that  the  title  company  and  the  trust  com- 
panies make  a  point  of  employing  lawyers  who  bring  them 
business — the    employment    being    limited    to    the    business 


24 

brought.  That  is  true,  hut  it  is  simply  on  the  principle  of 
paying  a  commission  to  one  who  originates  business.  The 
lawyer  who  is  retained  under  this  custom  has  ceased  to  be 
the  man  who  does  the  work  and  becomes  the  man  who  brings 
it  in.  It  is  noticeable  that  when  any  really  important  or  dif- 
ficult problem  of  litigation  arises  in  connection  with  an  estate 
that  has  been  brought  into  a  trust  company,  special  talent 
is  employed. 

Examine  the  economic  basis  for  the  accident  insurance  com- 
panies and  the  surety  and  bonding  companies  and  the  cor- 
poi'ation  collection  agencies.  Again  you  will  find  that  each 
has  isolated  a  large  class  of  profitable  legal  business.  They 
have  employed  capital  to  furnish  financial  responsibility.  By 
specialization  of  effort,  organization  of  a  clerical  force  and 
the  intelligent  employment  of  lawyers  whose  efforts  are  spe- 
cialized, they  have  done  the  particular  law  business  so  much 
more  efficiently  and  with  so  much  less  waste,  that  lawyers  at 
large  have  been  obliged  to  give  up  the  classes  of  business  in 
question  to  a  very  large  extent. 

In  the  largest  colorations  we  find  that  their  legal  business 
is  isolated  and  handled  by  their  own  legal  department.  It 
would  be  unthinkable  for  a  corporation  like  the  Harvester 
Company  to  scatter  its  mass  of  legal  business  among  the  law- 
yers at  large,  or  even  to  dump  it  on  any  one  firm.  The  process 
would  be  too  wasteful,  very  likely  too  inefficient,  and  conse- 
quently cost  too  much.  It,  therefore,  organizes  its  own  legal 
department,  with  the  efforts  of  its  employees  in  that  depart- 
ment carefully  specialized  to  get  the  utmost  possible  for  the 
amount  paid  consistent  with  proper  efficiency.  Sometimes 
the  legal  department  of  the  single  corporation  is  housed  along 
with  other  executive  offices  of  the  corporation,  or  it  may  oper- 
ate in  a  suite  of  offices  in  another  office  building  where  inde- 
pendent firms  are  housed.  It  may  even  operate  under  what 
appears  to  be  an  independent  firm  doing  a  general  business. 
The  difference,  however,  may  be  very  slight.  In  both  instances 
the  corporation's  law  business  has  been  isolated  and  is  being 
performed  efficiently  and  with  the  least  waste,  by  means  of 
a  thorough  organization  and  specialization  of  effort. 


25 

Then  we  have  the  situation  of  large  corporations  often  allied 
in  interest  and  in  the  same  line  of  business,  but  still  with  sep- 
arate organizations — for  instance,  railroad  corporations. 
There  is  a  central  legal  department  of  each  railway  in  another 
city  or  the  railway  is  too  small  to  maintain  any  high-priced 
legal  department  of  its  own.  Here  is  the  opportunity  for  the 
very  large  firm  to  gather  in  all  such  railways  and  do  all  the 
law  business  for  them  in  a  given  district.,  By  organizing  for 
the  doing  of  a  large  business  of  the  same  general  sort  effi- 
ciency is  produced  and  waste  eliminated  and  money  saved. 
The  firm  can  do  all  the  legal  business  for  each  railway  at  a  less 
cost  than  the  railway  could  do  it  for  itself  and  at  the  same 
time  make  a  handsome  profit. 

The  same  thing  happens  with  interstate  commerce  business 
for  shippers.  Here  is  a  new  class  of  legal  business.  It  does 
not  have  to  be  taken  away  from  the  bar  at  large  because  the 
bar  in  general  never  had  it.  It  appeared  suddenly  and  in 
considerable  volume.  It  was  at  once  isolated  by  particular 
lawyers  and  firms  and  efficiency  attained  and  waste  eliminated 
in  the  handling  of  it  by  the  proper  organization  of  large  firms. 

The  basis  for  an  advocates'  society  is  the  same  as  that  for 
the  title  company,  the  trust  company,  the  casualty  company, 
the  surety  company,  the  legal  department  of  a  large  corpora- 
tion and  a  large  firm  which  handles  for  an  annual  payment  all 
the  legal  work  of  several  independent  corporations  in  the  same 
line  of  business.  All  alike  respond  to  a  public  demand  for 
increased  efficiency  and  the  saving  of  waste  in  some  branch 
of  work  done  by  lawyers,  and  for  the  rendering  of  a  better 
service  to  the  public  at  a  less  cost. 

Litigation  in  Chicago  is  large  enough  in  bulk  to  justify  the 
effort  to  isolate  it  for  the  purpose  of  handling  it  more  effi- 
ciently and  with  less  cost.  The  controversies  which  must  be 
settled  by  a  judgment  in  court  number  from  one  hundred  and 
fifty  thousand  upwards  every  year.  The  larger  proportion 
of  these  do  not,  of  course,  require  any  service  from  advocates. 
But  among  so  many  units  of  judicial  business  there  are  enough 
contested  causes  to  justify  the  devotion  of  from  one  hundred 
to  three  hundred  members  of  the  bar  to  such  work  exclusively. 

At  present  the  efficiency  in  a  vast  amount  of  contested  lit- 


26 

igation  is  very  low  indeed.  This  does  not  necessarily  reflect 
upon  the  capacity  of  the  men  who  are  doing  it.  It  arises  prin- 
cipally from  the  fact  that  a  great  deal  of  contested  litigation 
is  handled  by  lawyers  who  go  to  court  too  seldom  to  become 
efficient. 

The  wasteful  manner  in  which  the  courts  permit  litigation  to 
be  conducted  is  due  in  great  part  to  the  way  the  lawyer's  busi- 
ness is  conducted.  The  courts  accommodate  themselves  to 
the  fact  that  a  great  many  lawyers  with  a  very  few  appear- 
ances each  make  up  the  total  number  of  appearances  in  the 
courts  and  that  there  is  a  low  standard  of  efficiency  among 
them.  The  fundamental  source  of  waste  is  lack  of  specializa- 
tion of  effort  among  lawyers.  The  lawyer  with  a  few  appear- 
ances each  year  in  contested  matters  is  obliged  to  cover  the 
whole  subject  of  practice  and  procedure  and  the  substantive 
law  for  each  case.  On  the  other  hand,  an  advocate  handling 
jury  trials  uses  over  and  over  again  his  knowledge  of  practice 
and  procedure,  the  proper  handling  of  witnesses,  the  law  of 
evidence  and  in  a  less  degree  the  rules  of  substantive  law. 
The  same  is  true  of  other  branches  of  practice  which  are  dis- 
tinct from  jury  trials.  The  application  of  the  principle  of  spe- 
cialization of  effort  and  the  repeated  use  of  the  same  inform- 
ation with  regard  to  litigated  cases  effects  an  enormous  sav- 
ing of  human  effort. 

The  men  who  achieve  this  saving  can  furnish  a  more  efficient 
service  to  the  public  at  a  less  cost.  A  public  duty  as  well  as  an 
economic  law  calls  for  volunteers  in  this  field.  All  that  is 
needed  is  a  practical  plan  for  organizing  to  meet  the  obvious 
and  insistent  demand. 

What  kind  of  an  organization  can  be  used?  What  is  its 
object?  and  how  is  it  to  accomplish  that  object?  These  are 
practical  questions. 

An  advocates'  society  should  have  as  its  charter  members 
lawyers  who  are  interested  in  the  promotion  of  a  profession 
of  advocacy — who  believe  that  there  is  a  sound  economic  de- 
mand for  it  and  that  its  establishment  is  for  the  benefit  of  the 
public  and  the  administration  of  justice.  The  charter  mem- 
bers need  not  all  be  lawyers  with  special  practice  as  advocates. 


27 

Prominent  and  influential  lawyers  who  are  not  advocates  may 
yet  desire  to  promote  the  existence  of  a  profession  of  advo- 
cacy. Future  members  of  such  a  society  should,  however,  be 
lawyers  who  are  more  in  court  in  the  trial  of  contested  cases 
than  is  the  average  practitioner.  Only  by  such  a  limitation  of 
membership  can  a  definite  interest  on  the  part  of  members  in 
the  promotion  of  a  profession  of  advocacy  be  assured.  The 
organization  must  aim  to  give  to  advocates  the  greatest  op- 
portunity for  individual  development  and  success.  It  must 
insist  upon  the  freest  competition  among  advocates  and  their 
complete  independence  in  action  of  each  other.  Since  these 
principles  apply  at  least  to  the  future  membership  in  a  society 
of  advocates,  such  a  society  must  be  a  voluntary  association 
not  for  pecuniary  profit. 

The  object  of  such  an  organization  is  to  assist  in  the  estab- 
lishment of  a  profession  of  advocacy.  The  existence  of  such 
a  profession  necessarily  involves  the  employment  of  some 
lawyers  as  advocates  by  other  lawyers.  No  distinct  profes- 
sion of  advocacy  could  arise  without  the  development  of 
this  practice.  The  reason  is  that  only  a  small  part  of  the  cli- 
ent's legal  business  involves  litigation.  The  lawyer  who  han- 
dles the  client's  legal  business  which  does  not  involve  litiga- 
tion has  no  time  to  develop  efficiency  in  the  handling  of  litiga- 
tion or  the  conduct  of  it  profitably  to  himself  without  too  high 
a  cost  to  himself  or  his  client.  For  the  same  reason  the  law- 
yer who  devotes  himself  to  advocacy  has  no  time  for  the  hand- 
ling of  a  vast  amount  of  legal  business  of  clients  which  does 
not  require  the  activities  of  an  advocate.  It  follows,  there- 
fore, that  a  profession  of  advocacy  cannot  exist  unless  the 
lawyer  who  is  in  contact  with  the  client  with  respect  to  nine- 
tenths  of  the  client's  legal  business  makes  a  practice  of  em- 
ploying a  suitable  advocate  for  the  actual  trial  of  the  one- 
tenth  of  the  client's  legal  business  which  involves  litigation. 
When,  therefore,  we  say  that  the  object  of  a  society  of  advo- 
cates is  to  promote  the  establishment  of  a  profession  of  ad- 
vocacy, what  we  mean  is  that  its  object  is  to  extend  the  prac- 
tice among  lawyers  generally,  of  employing,  in  contested  liti- 


28 

gated  cases,  members  of  the  bar  who  make  more  of  a  profes- 
sion of  advocacy  tlian  does  the  average  practitioner. 

The  practical  steps  now  available  for  accomplishing  this 
object  are  twofold:  First,  to  settle  the  terms  which  will  be 
satisfactory  to  the  lawyers  at  large,  as  well  as  the  advocates, 
upon  which  advocates  are  to  be  employed  by  other  lawyers  and 
to  give  publicity  to  those  terms,  as  well  as  assurances  of  their 
enforcement  so  far  as  the  lawyers  practicing  as  advocates 
are  concerned.  Second,  to  present  to  the  public  and  to  the 
lawyers  generally  those  members  of  the  bar  whose  practice 
is  already  such  as  to  warrant  their  being  employed  by  other 
lawyers  as  advocates  and  who  are  willing  to  accept  the  terms 
upon  which  advocates  are  to  be  employed  by  other  lawyers; 
and  from  year  to  year  to  add  to  the  list  as  rapidly  as  other 
members  of  the  bar  may  qualify,  and  to  drop  from  the  list 
those  members  of  the  bar  who  have  ceased  to  qualify. 

The  economic  demand  for  the  advocate  means  that  his  em- 
ployment by  other  lawyers  is  already  fundamentally  attrac- 
tive. His  services  are  already  desired  because  he  can  render 
better  service  at  less  cost  than  the  man  with  a  large  and  profit- 
able clientage  who  goes  seldom  into  court.  The  general  terms 
of  such  employment  alone  remain  to  be  settled. 

Of  these  the  most  important  is  the  assurance  on  the  part  of 
all  lawyers  practicing  as  advocates  that  they  will  scrupulously 
respect  the  clientele  of  lawyers  employing  them  and  not  avail 
themselves  of  any  opportunity  to  win  such  clients  to  them- 
selves. As  a  matter  of  fact  it  is  the  entire  lack  of  assurance 
of  the  observance  and  enforcement  of  this  rule  of  conduct 
that  today  prevents  the  development  of  a  profession  of  ad- 
vocacy. While  the  economic  demand  for  advocates  presses, 
the  lawyers  at  large  hold  back  because  of  the  fear — no  doubt 
justified  by  too  many  disagreeable  exjDeriences  of  their  own 
and  others — that  to  employ  an  advocate  means  the  loss  of  a 
client.  The  assurance  of  the  utmost  loyalty  by  the  advocate 
to  the  interests  of  the  lawyer  who  employs  him  is  a  sine  qua 
non  of  the  existence  of  a  profession  of  advocacy. 

The  rule  of  loyalty  on  the  part  of  the  advocate  to  the  law- 
yer who  employs  him  is  largely  self-enforcing  because  the  ad- 


29 

vocates  themselves  must  recognize  that  without  its  strict  ob- 
servance the  practice  of  their  profession  is  impossible.  An 
organization  of  advocates  which  gave  publicity  to  this  rule, 
enforced  it  against  its  own  members  by  expulsion  and  gave 
publicity  to  its  violation  by  others,  would  be  doing  all  that  is 
necessary  to  enforce  its  observance. 

It  is  important  that  the  employing  lawyer  should  be  diligent 
in  the  preparation  of  his  case  for  trial  and  that  this  prepara- 
tion should  be  done  in  his  office  by  him,  or  under  his  direction, 
or  under  the  direction  of  his  partners  or  assistants.  In  most 
cases  the  employing  lawyer  should  start  the  suit  and  place 
the  cause  in  the  hands  of  the  advocate  fully  prepared  only 
when  the  trial  is  imminent  and  all  negotiations  for  settle- 
ment are  unavailing.  Such  a  mode  of  proceeding  is,  of  course, 
not  at  all  imperative,  like  the  rule  of  loyalty  on  the  part  of 
the  advocate  toward  the  employing  lawyer.  It  is  important, 
however,  to  the  lawyer  employing  the  advocate  in  his  relation 
to  his  client.  If  the  client's  lawyer  dumps  the  incomplete  and 
raw  materials  of  a  law  suit  upon  another  lawyer  and  then  de- 
clines all  further  responsibility  and  either  refuses  or  is  unable 
to  do  any  effective  lawyer's  work,  the  lawyer  who  is  advocate 
enough  to  be  employed  at  all  must  turn  the  whole  matter  over 
to  partners  or  office  assistants  for  complete  preparation.  This 
frequently  involves  constant  contact  with  the  client  and  the 
witnesses  and  it  means  that  the  employing  lawyer  is  soon  re- 
duced to  complete  subordination  in  the  matter  and  at  the  time 
of  the  trial  is  practically  useless.  Under  such  circunistances 
the  lawyer's  client  will  lose  respect  for  him  and  confidence  in 
him  and  even  if  the  advocate  employed  exercised  the  highest 
degree  of  loyalty  to  the  employing  lawyer  and  refused  any  em- 
ployment direct  from  the  client  at  a  subsequent  time,  yet  the 
employing  lawyer  will  in  all  probability  lose  his  client.  It 
is  also  of  great  value  to  the  advocate  that  he  should  be  em- 
ployed by  able  lawyers  who  can  prepare  a  case  thoroughy  for 
trial  and  who  can  assist  and  even  take  a  prominent  part  in 
the  trial  if  necessary.  Such  preparation  means  far  greater 
chances  of  success  in  the  case.    It  means  also  that  the  advocate 


30 

does  not  have  to  maintain  an  office  force  for  the  detailed  prep- 
aration of  other  lawyers'  cases. 

The  question  of  fees  for  the  advocate  must,  of  course,  be  the 
subject  of  special  arrangement  in  each  case.  With  the  estab- 
lishment of  any  profession  of  advocacy  there  will  be  men  prac- 
ticing as  advocates  who  have  various  degrees  of  experience 
and  success  and  whose  charges  will  vary  sufficiently  to  enable 
any  lawyer  to  find  satisfactory  talent  for  the  advocate's  fees 
which  the  case  will  bear.  The  client's  lawyer  will  receive  his 
usual  fees  for  the  preparation  of  the  case  and  for  such  assist- 
ance as  he  may  render  at  the  trial  if  he  desires  to  appear  in  it 
as  an  advocate.  The  advocate  will  receive  his  fair  compensa- 
tion for  the  preparation  and  conduct  of  the  trial.  This  does  not 
mean  double  fees.  It  means  that  the  entire  fee  which  is  now 
paid  to  the  client's  lawyer  for  the  preparation  and  conduct  of 
the  case  in  court  will  be  divided,  with  this  difference,  however, 
that  since  the  division  of  labor  means  greater  efficiency  and 
less  waste  of  time  and  energy,  both  in  preparation  and  in  the 
trial,  the  total  fee  should  be  smaller,  or  else  the  same  total 
fee  should  be  divided  with  a  larger  margin  of  profit  to  both 
the  client's  lawyer  and  the  advocate. 

The  presenting  to  the  public  and  to  the  lawyers  generally 
of  those  who  are  competent  to  practice  as  advocates  and  actu- 
ally practicing  as  such  may  be  accomplished  in  a  direct  and 
proper  manner  as  follows : 

The  advocates'  society,  when  formed,  should  send  out  to 
all  the  members  of  the  bar  in  the  locality  who  have  been  in 
practice  for — let  us  say — five  years,  a  request  for  information 
for  the  purpose  of  ascertaining  who  are  practicing  as  advo- 
cates in  the  trial  of  contested  cases  to  a  greater  extent  than 
the  average  lawyer;  whether  such  practice  follows  special 
lines,  and  what  the  attitude  of  such  a  practitioner  is  toward 
the  principal  terms  above  mentioned  regarding'  the  employ- 
ment of  advocates  by  other  lawyers. 

Each  lawyer  would  be  asked  to  give  the  title  and  nature  of 
all  of  the  contested  causes  in  the  trial  of  which  he  had  been 
engaged  during  a  period  of— say— two  years  preceding  the 
request  for  information.    He  would  be  asked  as  to  each  case 


31 

"whether  he  had  conducted  it  in  chief  or  as  a  junior;  before 
what  judge  it  was  tried,  and  how  long  the  trial  took.  He  would 
be  asked  also  as  to  each  case  whether  he  conducted  it  in  the 
appellate  court  or  in  the  supreme  court,  or  both,  and  if  so, 
where  the  case  was  reported.  He  would  further  be  asked  as 
to  each  case  whether  he  had  been  employed  by  another  lawyer 
or  a  firm  of  which  he  was  not  a  member  and  if  so,  to  give  the 
name. 

Then  the  following  questions  might  be  asked : 

"Do  you  wish  to  be  classified  as  an  advocate  with  (1)  a  gen- 
eral practice  in  cases  tried  with  or  without  a  jury  and  whether 
civil  or  criminal,  or  (2)  a  jury  trial  practice  in  civil  and  crim- 
inal cases,  or  (3)  a  jury  trial  practice  in  civil  cases,  or  (4)  a 
jury  trial  practice  in  criminal  cases,  or  (5)  a  trial  practice  in 
chancery  causes  and  causes  tried  without  a  jury,  or  (6)  a  prac- 
tice in  appeal  cases  only? 

"If  you  do  not  wish  to  be  classified  in  any  of  the  above 
ways,  state  how  you  would  prefer  to  be  classified. 

"Do  you  wish  to  indicate  your  general  rule  as  to  a  minimum 
per  diem  charge?   If  so,  what  is  it  ? 

"What  proportion  of  your  total  professional  income  is  de- 
rived from  the  conduct  of  contested  litigation  in  the  courts? 

"What  proportion  of  your  total  time  spent  in  professional 
activity  is  consumed  in  the  preparation  and  conduct  of  con- 
tested litigation  in  the  courts? 

"Will  you  pledge  yourself  'scrupulously  to  respect  the 
clientele  of  lawyers  employing  you  and  not  to  avail  yourself 
of  any  opportunity  to  win  such  client  to  yourself?' 

"Do  you  desire  that  as  a  general  rule  cases  brought  to  you 
as  an  advocate  by  other  lawyers  should  be  thoroughly  and 
completely  prepared  for  trial  in  the  office  of  the  employing 
lawyer  and  that  your  employment  should  commence  when 
efforts  to  settle  the  case  have  been  abandoned  and  the  trial 
is  imminent?" 

When  such  questions  reach  the  members  of  the  bar  we  may 
assume  that  those  who  have  no  practice  in  the  handling  of 
contested  cases  in  the  courts  or  who  have  no  more  than  the 
average  practitioner  at  the  present  time,  will  throw  the  in- 


quiry  into  the  waste  basket.  It  is  probable  that  some  of  the 
older  members  of  the  bar,  though  well  qualified  to  take  a  lead- 
ing place  on  any  list  of  advocates,  will  not  be  sufficiently  in- 
terested to  reply.  But  the  men  who  are  now  actively  practic- 
ing as  advocates,  together  with  those  who  spend  a  major  por- 
tion of  their  time  in  the  trial  of  contested  cases  in  court  and 
the  principal  part  of  whose  professional  income  is  derived 
from  this  work,  will  have  a  vital  interest  in  responding  to  the 
inquiry.  No  question  is  asked  which  such  men  would  have 
the  slightest  objection  to  answering.  Younger  men  who  have 
talents  and  ambitions  in  the  same  direction  and  have  made 
a  start,  will  be  glad  of  the  opportunity  to  give  the  information 
requested.  Out  of  a  bar  of  several  thousand,  several  hundred 
replies  would  probably  be  forthcoming  and  from  the  informa- 
tion a  list,  valuable  alike  to  lawyers  and  advocates,  could  be 
compiled.  To  this  should  be  attached  the  terms  upon  which 
advocates  should  be  employed,  with  special  reference  to  the 
duty  of  loyalty  on  the  part  of  the  advocate  to  the  employing 
lawyer  and  the  desirability  in  general  of  the  employing  law- 
yer preparing  the  case  fully  and  completely  for  trial,  and  em- 
ploying the  advocate  only  after  the  case  is  pending  and  efforts 
to  settle  it  have  proved  futile.  A  copy  of  the  list  should  be 
sent  to  each  member  of  the  bar  and  the  list  published  in  the 
lawyers'  directory.  Thereafter  it  will  be  one  of  the  important 
functions  of  the  advocates '  society  to  revise  and  add  to  the  list 
from  year  to  year. 

One  thing  a  society  of  advocates  must  avoid.  It  should  not 
justify  the  impression  that  it  is  organized  to  exploit  and  ad- 
vertise its  own  members  or  to  develop  a  demand  for  their  em- 
ployment exclusively.  Such  a  society,  though  open  to  all  mem- 
bers of  the  bar  who  qualify,  will  have  to  start  with  only  a  pro- 
portion of  those  who  are  qualified  to  practice  as  advocates. 
It  may  indeed  contain  in  its  membership  some'  who  are  not 
so  qualified  at  all,  but  who  are  sincerely  interested  in  the  es- 
tablishment of  a  profession  of  advocacy.  Such  a  society  is 
not  organized  to  promote  the  fortunes  of  its  own  members. 
It  is  necessarily  organized  to  devise  ways  and  means  of  answer- 
ing an  economic  demand  of  the  community — a  demand  that  the 


33 

important  work  of  conducting  litigation  shall  be  done  with 
more  efficiency  and  with  less  waste.  To  that  end  its  duty  is 
to  canvass  the  entire  bar  for  every  member  who  is  qualified 
to  practice  as  an  advocate  and  who  is  desirous  of  being  pre- 
sented to  the  public  and  the  lawyers  as  engaged  in  practice 
as  an  advocate  and  who  is  willing  to  abide  by  the  legitimate 
and  proper  terms  of  employment  as  an  advocate. 


"THE  LEGAL  PROFESSION  IN  ONTARIO 

AND 

THE  LAW  SOCIETY  OF  UPPER  CANADA." 

By 

The  Honourable  William  Renwick  Riddell,  LL.  D.,  F.  R. 
Hist.  Soc,  Etc.,  Justice  of  the  Supreme  Court  of  Ontario. 

(Memo.  At  the  request  of  "The  Chicago  Society  of 
Advocates,"  Mr.  Justice  Riddell  addressed  them  on  "The 
Legal  Profession  in  Ontario"  at  their  inaugural  meeting, 
November  9,  1914.  The  following  contains  the  substance  of 
his  address  with  some  additions,  and  has  been  prepared  by 
Mr.  Justice  Riddell  at  the  instance  of  the  president  of  the 
Society.) 

So  long  as  Canada  remained  a  French  possession  there  was 
no  distinction  in  the  legal  profession.  The  same  person 
might  and  often  did  exercise  the  function  of  Advocate  or 
Barrister,  Notaire  (notary)  and  even  Arpenteur  (land 
surveyor). 

No  change  was  made  in  that  respect  by  the  victors  on  the 
Conquest  in  1759-60,  or  by  the  Royal  Proclamation  of  October 
7,  1763,  which  introduced  into  Canada  the  English  Law,  Civil 
and  Criminal.  This  Proclamation  also  established  a 
"Province  of  Quebec"  which  included  in  its  area  not  only 
what  is  now  the  Province  of  Quebec,  but  also  what  was  after- 
wards the  Province  of  Upper  Canada  and  is  now  the  Province 
of  Ontario.  When  the  Quebec  Act  was  passed  (1774),  14 
George  III,  c.  831,  it  was  not  considered  advisable  to  modify 
the  existing  practice. 

■In  Ontario,  as  In  England,  It  is  the  custom  to  cite  Statutes,  not  as  of  the  year 
No»M  Domini,  but  as  of  the  year  of  the  reign  of  the  regnant  monarch  when  they  were 
passed.  A  very  convenient  practice  has  however  sprung  up  of  prefixing  the  year  of 
our  Lord. 

35 


36 

But,  April  30,  1785,  an  Ordinance  was  made  by  the 
Lieutenant  Governor,  Henry  Hamilton2,  being  Ordinance  of 
25  George  HI,  c.  4 ;  this  by  Article  1  enacted  that  thenceforth 
no  one  should  be  commissioned,  appointed  or  permitted  to 
practice  as  a  barrister,  advocate,  solicitor,  attorney  or  proctor 
at  law  who  had  not  served  during  the  space  of  five  years  under 
a  contract  in  writing  with  some  advocate  or  attorney  duly 
admitted  and  practicing  in  the  Courts  in  the  Province  or  else- 
where in  His  Majesty's  Dominions  or  for  six  years  with  some 
clerk  or  register  of  a  Court  of  Common  Pleas  or  Court  of 
Appeals  in  the  Province,  with  a  proviso  in  favour  of  those 
called  to  the  Bar  or  admitted  to  practice  as  an  advocate  or 
attorney  elsewhere  in  the  Empire.  The  candidate  must  also 
have  been  examined  by  some  of  the  first  and  most  able 
barristers  advocates  or  attorneys  in  the  presence  of  the  Chief 
Justice  of  the  Province  or  two  or  more  Judges  of  the  Courts 
of  Common  Pleas,  and  be  certified  by  the  Chief  Justice  or  the 
Judges  as  of  fit  capacity  and  character  to  be  admitted  to 
practice  law. 

Article  2  makes  a  similar  provision  for  a  notary  to  serve 
five  years  with  a  notary,  and  to  be  examined  by  some  of  the 
eldest  notaries  in  the  presence  of  the  Chief  Justice  of  the 
Province  or  two  or  more  judges  of  the  Court  of  Common 
Pleas  of  the  District  wherein  he  served  his  clerkship,  and  to 
be  approved  by  him  or  them. 

Article  6  provides  that  thenceforth  barristers,  advocates, 
solicitors,  attorneys  or  proctors  at  law,  and  also  land  sur- 
veyors, should  not  practice  as  notaries ;  that  no  notary  is  to 
act  as  land  surveyor  or  barrister,  etc.;  "that  these  several 
occupations  of  practising  the  law  in  His  Majesty's  Courts 
in  this  Province  *  *  *  and  of  notary  and  of  land  sur- 
veyor shall  be  held  and  exercised  separately  and  by  different 

^Hamilton  first  appears  in  the  History  of  this  Continent  as  Governor  of  Detroit 
in -1777.  The  following  year  he  captured  Vlncennes  whose  commander  Helm  was  taken 
prisoner  with  a  small  "force  of  defenders.  The  well-known  George  Rogers  Clark 
shortly  afterwards  besieged  the  fort ;  and  Hamilton  was  in  his  turn  forced  to  sur- 
render. He  was  treated  by  Clark  with  much  barbarity,  and  on  Jefferson's  order  was 
sent  handcuffed  to  Williamsburg  where  his  treatment  was  still  worse.  Probably  as 
an  effect  of  a  letter  from  Governor  Haldimand  to  Washington,  Hamilton  was  paroled  ; 
and  he  got  to  England  in  1781.  He  was  made  Lieutenant  Governor  of  Quebec  in 
1784,  filling  that  position  a  little  less  than  a  year.  He  was  a  man  of  no  great  capacity 
and  but  little  judgment,  although  perfectly  honest  and  sincerely  desirous  of  doing  hi9 
duty.  It  is  probable  that  the  ordinance  of  April  30,  1785,  was  due  to  the  influence 
of  the  British  newcomers  in  the  Province. 


37 

persons  to  the  end  and  purpose  that  the  functions  and  duties 
of  the  one  may  not  interfere  with  the  other."  All  practi- 
tioners were  given  twelve  months  to  elect  which  branch  of  the 
profession  they  would  follow3. 

A  strong  protest  was  made  against  this  ordinance  by  some 
of  the  French-Canadian  practitioners,  but  in  vain.  The  dis- 
tinction between  the  practitioner  in  the  Courts  and  the  notary 
still  obtains  in  the  present  Province  of  Quebec. 

In  1788  four  Courts  of  Common  Pleas  were  established  in 
the  territory  afterwards  the  Province  of  Upper  Canada,  but 
then  part  of  the  Province  of  Quebec,  one  for  each  district; 
they  were,  of  course,  under  the  same  law  and  practice. 

In  1791  was  passed  the  Act  31  George  III,  c.  31,  commonly 
called  the  Canada  Act  or  Constitutional  Act,  which  divided 
the  vast  territory  of  the  Province  of  Quebec  into  two  prov- 
inces, the  western  being  called  Upper  Canada  and  the  eastern 
Lower  Canada,  each  with  its  own  Parliament  and  Lieutenant 
Governor. 

The  first  Act  of  the  first  Parliament  of  Upper  Canada 
(1792)  32  George  3,  c.  1  (U.  C.)  was  to  introduce  the  English 
Civil  Law;  but  no  change  was  then  made  in  the  constitution 
of  the  profession.  There  were  not  many  in  the  Province  skilled 
in  the  English  Law ;  and,  accordingly  in  1784  was  passed  an 
Act,  34  George  III,  c.  4  (U.  C.)  which  authorized  the  Governor 
to  grant  a  license  to  any  number  not  exceeding  sixteen  British 
subjects  to  practice  as  attornies  and  advocates.  This  may 
have  been,  and  probably  was,  due  to  the  institution  of  the 
Court  of  King's  Bench  for  the  Province  by  the  same  Statute. 
The  Act  suspended  for  two  years  the  operation  within  Upper 
Canada  of  the  Ordinance  of  1785.4  During  all  this  time  and 
until  the  coming  into  force  of  the  Act  next  to  be  mentioned,  all 
practitioners  were  called  "to  the  degree  of  an  Advocate  and  to 
that  of  an  Attorney. ' '    The  original  roll  of  the  Court  of  King's 

"The  Ordinance  is  printed  in  full  in  both  English  and  French  in  the  volume  of 
"Ordinances  •  •  •  the  Province  of  Quebec,"  1777  (in  the  Judges'  Library  at 
Osgoode   Hall)    pp.   67-68. 

•Those  who  so  received  a  license  were  !n  effect  given  a  monopoly  of  the  practice  as 
they  only  could  charge  for  their  services;  and  the  list  Included  most  if  not  all  of  the 
lawyers  and  some  others. 


38 

Bench,  still  extant,  sets  out  the  oath  to  be  taken  by  the 
applicant  and  the  "degree"  conferred. 

The  Act  of  1797,  37  George  III,  c.  13,  (U.C.),wasthe  begin- 
ning of  our  present  system.  That  Act,  passed  on  the  3rd  of 
July,  1797,  provided  that  it  should  be  lawful  for  the  persons 
now  admitted  to  practice  law,  and  practising  at  the  Bar  in  the 
Province,  to  form  themselves  into  a  society  to  be  called  the 
Law  Society  of  Upper  Canada,  "as  well  as  for  the  establish- 
ment of  order  amongst  themselves,  as  for  the  purpose  of 
securing  to  the  Province  and  the  profession  a  learned  and 
honorable  body5,  to  assist  their  fellow  subjects  as  occasion 
may  require,  and  to  support  and  maintain  the  Constitution  of 
the  said  Province."  The  Society  was  authorized  to  frame 
Rules  and  Begulations  (under  inspection  of  the  Judges  of 
the  Province  as  Visitors  of  the  Society)  for  its  own  govern- 
ment; to  appoint  the  six  senior  members  or  more,  for  the 
time  being,  and  from  time  to  time  as  Governors  or  Benchers 
(of  whom  the  Attorney  General  and  Solicitor  General  for  the 
time  being  were  to  be  two),  and  also  to  appoint  a  Librarian 
and  a  Treasurer. 

They  were  to  meet  in  Newark  (Niagara-on-the-Lake)  on 
July  17, 1797,  to  frame  such  Rules  and  Regulations. 

Each  person  practicing  at  the  Bar  was  allowed  to  take  one 
clerk  for  the  purpose  of  instructing  him  in  the  knowledge  of 
the  laws. 

Except  those  who  were  practitioners  at  the  time  of  the 
passing  of  the  Act,  no  one  should  be  permitted  to  prac- 
tice at  the  Bar,  unless  he  had  been  entered  of  and  admitted  into 
the  Society  as  a  Student  of  the  Laws,  and  had  remained  on  the 
Books  of  the  Society  for  five  years,  conformed  to  all  its  Rules 
and  Regulations  and  been  duly  called  and  admitted  as  a 
Barrister  according  to  the  Constitutions  and  establishment  of 
the  Society.  Proviso  in  favor  of  those  who  had  practised  at 
the  Bar  elsewhere  in  His  Majesty's  dominions,  and  the  time 
actually  served  under  articles  before  the  passing  of  the  Act 
should  count  as  part  of  the  five  years,  pro  tanto. 


»In  view  of  the  adoption  by  all  Govermental  departments  and  most  literary  Can- 
adians of  the  "English"  spelling  of  such  words  as  "honour",  etc..  it  is  not  without 
interest  to  note  that  in  the  printed  copies  of  the  Statute  this  word  is  spelled  without 
the  "u." 


39 

One  might  become  and  act  "merely  as  an  Attorney  or 
Solicitor"  after  due  service  for  five  years  under  articles  to  an 
attorney  and  "standing  in  the  books  of  the  Society"  for  three 
years. 

This  Statute  for  the  first  time  in  our  Province  established 
the  distinction  between  Barrister  and  Attorney,  and  since  it 
came  into  effect  no  one  (with  an  exception  shortly  to  be  noted), 
who  had  not  been  called  to  the  Bar  by  and  received  the  degree 
of  Barrister-at-Law  from  the  Law  Society  of  Upper  Canada, 
has  ever  been  heard  by  the  Courts  of  the  Province.  The 
Courts  have  no  power  to  permit  any  other  to  be  heard.  There 
is  no  international  or  interprovineial  comity  or  courtesy  per- 
mitting such  a  course. 

Here  at  the  beginning  of  the  Society  is  found  a  marked  dif- 
ference between  it  and  the  Inns  of  Court  in  London.  They 
have  no  concern  with  attorneys  (or  solicitors),  every  attorney 
or  solicitor  must  in  Upper  Canada  have  been  on  the  books 
of  the  Society  for  three  years,  (we  shall  have  occasion  later  to 
notice  the  important  change  made  in  1822  by  the  Statute  2 
Geo.  4,  C.5U.C). 

Before  discussing  the  functions  of  the  Society,  I  shall  give 
a  brief  record  of  its  history  to  the  present  time. 

Ten  practitioners  met  at  Wilson's  Hotel,  Newark,  on  July 
17,  1797,  and  organized  the  Law  Society  of  Upper  Canada; 
and  upon  that  day  conferred  the  degree  of  Barrister  at  Law 
upon  all  the  practitioners  who  applied  therefor  (including 
themselves).  One  other  (William  Weekes)  applied  two  years 
after  (in  1799),  and  received  the  degree;  the  remaining  four 
never  applied  for  and  never  received  it.  These  four  con- 
stitute the  sole  exception  to  the  rule  that  no  one  could  since 
1797  address  our  Courts  except  those  called  by  the  Society. 

The  Statute  did  not  make  the  Society  a  corporation;  but 
it  was  a  mere  association  of  gentlemen  with  well-defined 
functions.  The  absence  of  incorporation  became  a  drawback, 
and  in  1822  the  Act  2  George  IV,  c.  5  (U.  C.)  declared  "the 
Treasurer  and  Benchers  of  the  Law  Society  for  the  time  being 
and  their  successors  *     *     to  be  one  body  corporate  and 

politic." 


40 

This  led  to  some  difficulty,  which,  however,  was  got  over  by 
the  Eesolution  of  the  Benchers  in  Convocation  in  June,  1831, 
Trinity  Term,  1  and  2  Wm.  IV,  that  all  Barristers  and 
Students-at-Law  entered  in  the  Books  of  the  Society  were 
still  members  of  the  Law  Society  of  Upper  Canada,  though 
not  members  of  the  Corporation  of  the  Law  Society  of  Upper 
Canada;  and  this  state  of  affairs  still  continues;  the  Treas- 
urer and  Benchers  alone  are  the  Corporation,  but  all  students 
and  barristers  duly  entered  are  members  of  the  Society. 

The  Government  of  the  Society  was  by  the  original  Act 
to  be  by  Benchers  or  Governors  appointed  by  the  Society, 
the  six  senior  members  or  more  for  the  time  being,  of  whom 
the  Attorney  General  and  Solicitor  General  were  to  be  two. 
At  its  first  meeting  the  members  present  appointed  the  Attor- 
ney General  and  Solicitor  General  and  the  four  senior 
barristers  as  Benchers.  At  a  subsequent  meeting  November 
9,  1799,  all  the  existing  barristers  were  appointed  Benchers. 
Thereafter  for  a  time  the  practice  was  followed  of  the  exist- 
ing Benchers  appointing  a  member  of  the  Society  from  time 
to  time  as  a  Bencher,  his  appointment  being  communicated 
to  him  by  the  Treasurer.  No  Statute,  Rule  or  Resolution  can 
be  found  authorizing  this  method  of  election,  but  no  com- 
plaint seems  ever  to  have  been  made  of  the  Benchers  taking 
this  power  out  of  the  hands  of  the  Society,  who  alone  could 
appoint  under  the  Act  of  1797.  Of  course  each  new  Attorney 
General  and  Solicitor  General  was,  according  to  the  Statute, 
appointed  forthwith  after  receiving  his  Patent. 

This  self-perpetuating  system  was  put  an  end  to  in  1871 
by  the  Ontario  Act  34  Vic.  c.  15,  which  instituted  a  bench  of 
thirty  Benchers  to  be  elected  by  ballot  by  all  the  Barristers 
on  the  Boll,  and  also  of  ex  officio  Benchers,  the  Attorney 
General  of  the  Province  and  all  ex-Attorneys  General  and 
ex-Solicitors  General  (there  is  now  no  Solicitor  General  of 
the  Province),  and  all  retired  Judges  of  the  Superior  Courts. 
The  elected  members  hold  office  for  five  years,  when  there  is 
a  new  election. 

A  natural  effect  of  this  was  that  the  older  and  better  known 
Barristers  were  elected  term  after  term,  and  there  was  little 


41 

chance  of  a  young  man  obtaining  the  position  of  Bencher.  To 
avoid  this,  it  was  in  1910  enacted  by  10  Edw.  VII.  c.  76  (Ont.) 
that  all  those  who  had  been  elected  at  four  quinquennial  elec- 
tions should  be  ex-officio  Benchers,  thus  leaving  the  field  open 
for  the  younger  men.  (It  had  a  few  years  before  by  (1900),  63 
Vic.  c.  20,  s.  I,  been  provided  that  every  one  who  had  for  seven 
consecutive  years  held  the  office  of  Treasurer  of  the  Society 
should  be  an  ex-officio  Bencher.) 

The  original  Act  had  authorized  the  Society  to  appoint  a 
Treasurer.  This  position  did  not  mean  even  then  simply  one 
who  cared  for  the  funds  of  the  Society,  but  one  who  was  the 
Head  of  the  Society,  President  and  Chairman.  This  was  an 
adoption  of  the  terminology  of  the  English  Inns  of  Court8. 

The  Society  at  the  first  meeting  resolved  that  "the  Benchers 
according  to  seniority  take  upon  themselves  the  Treasurer- 
ship  of  the  said  Society  annually."  We  find  no  close  adher- 
ence to  this  rule.  The  Attorney  General  was  the  first  Treas- 
urer, and  for  one  year  only;  then  the  Solicitor  General7  for 
three ;  a  prominent  member  of  the  bar  for  four ;  then  the  new 
Attorney  General  for  one  year;  the  new  Solicitor  Genei-al 
for  five  years ;  another  prominent  member  of  the  bar  for  four 
years ;  the  next  Attorney  General  for  four,  and  his  successor 
for  one.  Then  July  8,  1819,  was  passed  a  rule  that  the 
Treasurer  should  be  chosen  annually  in  Michaelmas  Term  by 
the  majority  of  the  votes  of  the  members  then  present.  July 
2,  1831,  the  date  was  changed  to  Hilary  Term,  and  September 
1, 1859,  back  to  Michaelmas. 

The  Statute  of  1871,  which  made  Benchers  elective,  fixed 

•See  for  example  Herbert's  Antiquities  of  the  Inns  of  Court  and  Chancery,  1804, 
p.  228.  "The  officer  of  Treasurer  is  of  considerable  importance  *  •  •  He  Is  the 
Supreme  Officer  of  the  whole  Society  and  has  the  regulation  of  its  concerns.  He 
admits  gentlemen  into  the  Society,  etc. 

The  fact  that  the  Attorney-General  John  White  was  an  English  Barrister,  prob- 
ably accounts  for  the  language  adopted.  White  later  (January  1800)  was  shot  and 
killed   in   a  duel   with   a  gentleman  whose  wife   he   had   traduced. 


'This  was  Robert  I.  D.  Gray,  the  son  of  a  major  In  the  British  service.  He  was 
a  member  of  the  House  of  Commons  of  Upper  Canada,  for  the  second  and  third  Par- 
liaments. 

In  October  1804  he  accompanied  the  Judge,  Mr.  Justice  Cochran,  another  mem- 
ber of  the  Bar,  the  High  Constable  of  York  (Toronto),  two  Indian  interpreters,  the 
witnesses  and  an  Indian  Ogetonlcut  who  was  captured  on  Toronto  Island  (then  a 
peninsula),  and  was  to  be  conveyed  by  the  Government  schooner  Speedy  to  the  assize 
town  Newcastle  (now  Presqu'isle)  for  trial.  A  storm  sprang  up,  and  the  vessel  was 
lost  with  all   on  board,  nothing  but  a  hen-coop  coming  to  land. 

It  is  interesting  to  note  that  Grey  left  certain  property  to  his  black  servant 
John  Baker  who  was  afterwards  at  the  battle  of  Waterloo  as  a  British  soldier  and 
v/ho  survived  till   1871,   the  last  of  all  who  have  been  slaves  in  Canada. 


42 

the  date  for  election  of  Treasurer;  the  first  term  after  the 
election  of  the  new  Bench  and  in  Easter  Term  of  each  year. 
This  still  is  the  rule. 

So  much  for  the  Law  Society  itself ;  we  shall  now  consider  its 
dealings  with  the  Bar. 

The  first  Bule  of  the  Society  appointed  Benchers ;  the  second 
was  that  every  member  of  the  Society  should  enter  into 
a  bond  with  the  Treasurer  to  pay  the  sum  of  £5  (=$20) 
annually  so  long  as  he  should  continue  a  member  of  the 
Society8.  In  1831  this  was  reduced  to  11-8  (=$2.33)  per  term, 
or  $9.33  per  annum,  payable  on  or  before  the  last  day  of  every 
term  in  each  year;  and  in  1833  to  2-6  (=$0.50)  per  term  or 
$2.00  per  annum,  payable  on  or  before  the  first  day  of 
Michaelmas  term,  i.  e.,  the  third  Monday  in  November.  This 
rule  is  still  in  force  for  Barristers ;  solicitors  now  pay  $15  per 
annum.  The  third  rule  of  1797  was  that  every  student  in  his 
admission  to  the  Society  should  pay  the  sum  of  £10  (=$40) 
and  the  further  sum  of  £20  (=$80)  when  called  to  the  Bar, 
and  enter  into  a  bond  to  pay  annually  £5  (=$20).  The  annual 
payment  was  reduced  after  call  as  we  have  seen  in  1831  and 
1833.  Whether  the  fee  of  £5  annually  exacted  by  Bule  2  of 
1797  was  exacted  of  the  student  as  a  member  of  the  Law 
Society  before  his  call,  does  not  very  clearly  appear9. 

The  statutory  title  of  the  student  admitted  on  the  books 
of  the  Society  was  "  Student-of-the-Laws ; "  this  included  both 
those  proceeding  to  the  degree  of  Barrister-at-Law  and  those 
intending  to  become  an  attorney — technically  the  former  were 
Students-at-Law,  the  latter  Articled  Clerks  (the  distinction  is 
not  always  observed).  To  become  a  Barrister  there  was  no 
necessity  to  serve  under  articles;  to  become  an  Attorney  it 
required  five  years  actual  service  under  articles. 

From  the  very  beginning  in  by  far  the  greater  number  of 
cases,  an  applicant  for  admission  upon  the  Books  of  the 
Society  was  under  articles  at  the  time.  Nearly  every  student 
became  both  Barrister  and  Attorney,  but  from  the  first,  as 


8It  must  not  be  forgotten  that  all  students  duly  admitted  on  the  books  were  and 
are  members  of  the  Society. 


•January  11,  1808,  a  rule  was  passed  rescinding  previous  rules  as  to  fees  and  re- 
quiring every  member  to  pay  £5  ($20)  ;  every  student  upon  admission  to  the  book* 
of  the  Society  £5,  and  the  same  sum  upon  being  called  to  the  Bar. 


43 

now,  there  were  a  very  few  who  became  Attorneys  or 
Barristers,  but  not  both. 

There  was  at  first  no  entrance  examination;  but  the  mem- 
ber proposing  a  student  (generally  his  master)  would  certify 
that  the  applicant  was  in  his  opinion  qualified  by  education 
principles  and  habits  of  life  to  become  a  member  of  the  Law 
Society. 

In  1808  (Hilary  Term,  58  Geo.  3),  a  rule  was  passed  that  no 
person  should  be  admitted  a  member  unless  he  should  declare 
to  the  Society  upon  his  honor  that  his  application  was  to 
enable  him  to  become  a  resident  practitioner,  but  does  not 
seem  to  have  received  the  sanction  of  the  Judges.  No  trace  of 
such  a  declaration  appears  in  the  early  Summary  of  Provi- 
sions relating  to  admission  of  members,  in  the  Form  of  Peti- 
tion prescribed  or  in  the  minutes  of  the  Law  Society.  Up  to 
1803,  the  applicant  was  in  practice  proposed  and  admitted  at 
the  same  meeting;  thereafter  the  proposer  was  required  to 
give  a  term's  notice  of  his  intention  to  present  the  candidate10. 

Applicants  must  still  have  their  names  posted  conspicuously 
for  thirty  days  by  the  Secretary  of  the  Society,  and  if  no 
objection  be  taken  they  are  entered  as  of  the  term  in  which 
their  application  was  made.  Curiously  enough  much  the  same 
practice  was  followed  in  the  case  of  three  applicants  in  Easter 
Term,  56  Geo.  3, 1816. 

In  1820  Hilary  Term,  60  Geo.  3,  a  rule  was  passed  that  after 
that  term  all  applicants  for  admission  should  be  required  in 
presence  of  the  Benchers  to  give  a  written  translation  of  a 
portion  of  Cicero's  Orations  or  perform  such  other  exercise 
as  might  satisfy  the  Society  of  their  acquaintance  with  Latin 
and  English  composition,  "and  that  no  person   who   cannot 


"John  Anderson  was  the  last  to  be  presented  under  the  old  practice,  Easter  Term 
41,  Geo.  3,  13  April  1801.  John  Macdonell.  afterwards  Attorney  General  of  Upper 
Canada,  the  first  under  the  new,  Hilary  Term,  43  Geo.  3,  6th  April  1803.  Macdonell 
was  Adjutant  to  Sir  Isaac  Brock  in  the  campaign  of  1812  and  was  fatally  wounded  at 
the  Battle  of  Queenston  Heights,  gallantly  lighting  for  his  country. 


44 

give  these  proofs  of  a  liberal  education  shall  hereafter  be 
admitted  upon  their  books."11 

In  1821,  a  voluntary  association  called  the  Advocate  Society 
was  formed  in  York  (Toronto)  by  students-at-law  for  discus- 
sions, moot  courts,  etc.,  but  it  lasted  only  a  very  short  time, 
going  the  way  of  all  such  voluntary  organizations12. 

In  1825  (July  1st  of  Trinity  Term,  6  Geo.  4),  the  Law 
Society  took  a  further  step,  and  required  all  candidates  for 
admission  on  its  books  to  exhibit  in  his  examination  "a  gen- 
eral knowledge  of  English,  Grecian  and  Eoman  History,  a 
becoming  acquaintance  with  one  of  the  ancient  Eoman  poets, 
as  Virgil,  Horace  or  Juvenal,  and  the  like  acquaintance  with 
some  of  the  celebrated  prose  works  of  the  ancients  such  as 


uIt  is  at  least  interesting  to  note  that  in  examination  of  a  candidate  to  practice 
medicine  for  long  after  this  time,  the  practice  seems  to  have  been  to  examine  in 
Latin  first — a  sort  of  matriculation  examination — and  to  proceed  with  the  profes- 
sional subjects  only  if  the  candidate  exhibited  some  familiarity  with  that  language. 
We  find  the  Board  of  Toronto  writing  the  sister  Boards  in  Montreal  and  Quebec  in 
April  1847  : 

"The  course  this  Board  pursues  in  the  examination  of  candidates  is  as  follows : 
1st.  Some  acquaintance  with  the  Latin  language  is  required.  With  this  view, 
If  the  candidate  cannot  construe  some  paragraphs  of  Gregory's  Conspectus,  a  portion 
of  the  Pharmacopoeia  Londinensis  or  a  Latin  written  prescription  is  substituted ; 
in  the  event  of  a  total  failure  in  these,  the  professional  examination  is  not  proceeded 
in.     If  the  Latin  examination  is  satisfactory,  then  follow,"  professional  subjects. 

It  may  seem  anomalous  to  begin  a  professional  examination  with  an  enquiry  into 
the  knowledge  of  Latin  possessed  by  the  candidate ;  but  it  must  be  borne  in  mind 
that  in  those  days  everyone  of  education  had  some  knowledge  of  Latin — and  an  ig- 
norance of  that  language  indicated  if  it  did  not  absolutely  prove  a  lack  of  general 
culture. 

"Examination  for  License  to  Practice  Sixty  Years  ago"  by  Hon.  Mr.  Justice  Rid- 
dell,   Canada   Lancet,   June   1913. 

After  this  rule  of  1820  the  entries  in  the  Law  Society's  Books  read,  "the  Society 
being  satisfied  of  his  qualifications  do  admit   him  on  the  Books  accordingly." 

The  last  to  be  entered  without  examination  was  John  Muirhead,  and  the  first  to 
be  entered  after  examination  was  Marcus  F.  Whitehead,  Nos.  82  and  86  on  the  Common 
Roll,    (not  the  Barristers'  Roll). 


"The  Books  containing  the  proceedings  of  this  Society  are  still  extant  and  are 
safely  kept  at  Osgoode  Hall. 

There  had  been  a  "Junior  Advocates  Society"  which,  April  2,  1822,  resolved  Itself 
into  the  "Advocate  Society"  composed  of  Members  of  the  Law  Society  only,  each 
paying  every  Term  3s,  9d  (75(!),  increased  later  to  5s.  In  discussing  questions  the 
Rules  of  the  House  of  Commons  were  to  be  observed,  all  students  at  Law  might  at- 
tend below  the  Bar  without  Introduction ;  every  member  of  the  Society  might  "ex- 
press his  sentiments  freely.  The  elected  Prothonotary  was  required  every  term  to 
inspect  the  Rule  Book  of  the  King's  Bench  and  enter  every  new  Rule  in  the  Rule 
Book  of  the  Society.     The  Society   had  a  Great  Seal  and  a  Keeper  thereof. 

The  first  meeting  was  in  April  2,  1821  at  which  several  students  attended,  soma 
of  whom  afterwards  became  very  well  known  at  the  Bar.  The  last  meeting  re- 
corded was  June  20,   1826.  u        . 

Prom  the  first,  the  Society  was  often  forced  to  adjourn  Its  meetings  for  want  of 
a  quorum.     I   have  not  found   any   meeting  at  which   more  than   nine   members  were 

pppopn  t" 

It  met  until  February  1822  in  the  office  of  the  Solicitor  General  Henry  John 
Boulton,  son  of  Mr.  Justice  Boulton,  afterwards  Chief  Justice  of  Newfoundland ;  and 
afterwards    the   meetings   were   held    in   the   York   Court   House. 

The  qualification  that  to  become  a  member  the  applicant  must  be  a  member  of 
the  Law  Society  was  occasionally  relaxed  in  favour  of  an  Articled  Clerk  who  had  not 
vet  been  able  to  pass  the  preliminary  examinations  before  the  Benchers  of  the  Law 
Society  While  it  has  been  said  more  than  once  that  the  Society  was  composed  of 
Barristers  and  Students-at-Law  I  find  that  only  one  Barrister  was  admitted. 

It  appears  from  the  Minutes  that  the  Students  at  Law  at  Kingston  formed  a 
similar  Society  in  1822,  and  also  that  there  were  members  of  the  Society  itself  re- 
siding in  many  parts  of  the  Province,  e.  g.  Kingston,  Port  Hope,  Hallowell  (Plcton). 
It  Beems  to  have  gone  to  pieces  when  Robert  Baldwin  was  called  to  the  Bar. 


45 

Sallust  or  Cicero  De  Officiis  as  well  as  his  orations  •  *  • 
and  it  is  also  expected  that  the  student  will  also  show  the 
Society  that  he  has  had  some  reasonable  proportion  of 
mathematical  instruction."  This  rule  was  never  approved  by 
the  judges  and  never  acted  upon;  it  was  formally  placed  in 
abeyance  January  6,  1827.  From  the  written  minutes  of  the 
Advocate  Society  already  mentioned,  it  appears  that  it  was 
by  no  means  an  uncommon  practice  for  a  student  to  article 
himself  before  he  was  able  to  pass  the  examination ;  if  he  was 
able  to  pass  the  examination  within  two  years  of  entering 
articles  he  did  not  lose  time  as  an  attorney,  as  it  was  neces- 
sary to  be  five  years  under  articles  but  only  three  years  on  the 
books  of  the  Society,  to  be  admitted  attorney.  Even  the 
necessity  of  being  three  years  on  the  books  was  taken  away, 
as  we  shall  see,  in  1822. 

No  supervision  was  had  by  the  Law  Society  over  the  educa- 
tion of  the  student.  If  a  student  at  law,  he  attended  the 
chambers  of  some  barrister;  if  an  articled  clerk  he  served  in 
the  office  of  an  attorney,  his  master.  At  the  end  of  five  years 
the  budding  Barrister  produced  to  the  Law  Society  a  certifi- 
cate of  the  Barrister  in  whose  chambers  he  had  studied  that 
he  had  so  studied  for  five  years,  and  was  called  to  the  Bar  by 
the  Society,  receiving  the  degree  of  Barrister-at-Law.  With 
the  mere  Articled  Clerk  the  Law  Society  had  nothing  further 
to  do  than  admit  him  on  its  books,  thereby  making  him  a 
member  of  the  Society,  and  to  certify  at  the  proper  time  that 
he  had  been  on  its  books  for  three  years.  The  Articled  Clerk 
appeared  before  the  Court  of  King's  Bench,  produced  an 
affidavit  by  himself  of  service  and  a  certificate  from  his 
master,  and  was  admitted  by  the  Court  as  an  Attorney-at-Law. 
The  Barrister  continued  to  pay  to  the  funds  of  the  Law 
Society,  the  Attorney  did  not. 

Then  came  the  Act  of  1822,  2  Geo.  4,  c.  5  (IT.  C.)  which  by 
section  3  rendered  it  unnecessary  for  any  Articled  Clerk  to  be 
entered  on  the  books  of  the  Law  Society;  so  that  even  the 
slight  control  over  Attorneys  which  the  Society  had  by  reason 
of  its  preliminary  examinations  ceased.  Members  of  the  Law 
Society  thereafter  were  Barristers  and  Students-at-Law  only. 


46 

In  1828  (Hilary  Term,  8  Geo.  4,  c.  1),  a  rule  was  passed  that 
all  students  to  be  thereafter  entered  on  the  books  of  the 
Society  should  keep  four  terms  at  York  (Toronto)  during 
their  five  years  entry13.  At  this  time  the  Benchers  were  con- 
sidering a  scheme  for  the  erection  of  a  building  for  their  meet- 
ings. Theretofore  they  had  met  in  various  places,  Wilson's 
Hotel,  the  Treasurer's  Office,  the  Parliamentary  Library,  the 
Court  House,  etc.  In  1820  (Michaelmas  Term),  1  Geo.  4,  they 
decided  to  expend  £500  (=$2,000)  in  "erecting  a  building  for 
their  use  to  be  called  'Osgoode  Hall'14.  They  already  had  a 
plot  of  land,  but  were  not  satisfied  with  it,  and  were  negotiat- 
ing for  another  site.  May,  1828,  they  bought  the  present  site 
from  the  Attorney  General,  John  B.  Robinson,  for  £1,000 
(=$4,000),  and  proceeded,  the  next  year,  to  erect  what  is  now 
the  East  Wing  of  Osgoode  Hall,  having  determined  to  spend 
about  £3,000  (=$12,000)  for  that  purpose. 

The  Hall  was  to  contain  not  only  a  convocation  room,  etc. 
for  the  Benchers,  but  also  rooms  for  the  Court  of  King's 
Bench  and  bed  rooms,  dining  room,  etc.  for  Barristers  and 
Students-at-Law.  Students  were  expected  to  keep  their  terms 
in  the  hall  about  to  be  built.  It  was  finished  in  1832.  The 
first  meeting  of  the  Benchers  in  it  was  held  Thursday,  Feb- 

13This  rule  was  In  great  measure  due  to  Dr.  William  Warren  Baldwin  for  that 
and  several  other  years.  He  was  an  Irishman  from  near  Cork,  and  had  graduated  in 
medicine  from  Edinburgh  University.  He  practised  for  a  time  in  his  native  land  but 
toward  the  end  of  the  18th  century  emigrated  with  his  father  to  Upper  Canada  in 
consequence  of  the  troublous  times  of  the  Rebellion  of  1798.  He  settled  in  Durban  coun- 
try (near  what  is  now  Bowmansville),  and  for  a  short  time  practiced  medicine  there. 
He  then  came  to  Toronto  and  unsuccessfully  tried  school  teaching.  He  received  a 
license  to  pratise  law  in  1803  from  the  Hon.  Peter  Hunter,  the  Lieut-Governor,  under  the 
Act  of  that  year,  and  was  called  to  the  Bar  Easter  Term  43  Geo.  3.  He  became  a 
very  active  practitioner,  Bencher  in  1807  and  Treasurer  1811-1814 ;  1824-1828.  Ha 
was  the  father  of  the  well-known  statesman,  Robert  Baldwin,  It  was  in  great 
measure  due  to  his  efforts  that  Osgoode  Hail  was  built. 


"Called  after  William  Osgoode  the  first  Chief  Justice  of  Upper  Canada.  One 
historian  make  him  an  illegitimate  son  of  George  III,  and  certainly  he  was  persona 
grata  with,  that  King.  After  being  Chief  Justice  of  this  Province  1792-1794,  he 
became  Chief  Justice  of  Lower  Canada  1794-1801.  He  then  returned  to  England 
where  he  died  in  1824,  aged  70.     He  left  no  mark  on  our  jurisprudence. 

This  building,  erected  under  the  eye  of  Dr.  William  Warren  Baldwin,  was  what 
is  now  the  East  Wing,  "a  plain  matter-of-fact  white  brick  building  two  and  a  half 
6tories  high."  The  west  wing  of  similar  character  was  begun  in  1844  and  finished  In 
1846,  and  at  the  same  time  the  two  buildings  were  connected  by  a  building  sur- 
mounted by  a  dome.  In  1857-60  the  whole  was  renovated,  the  wings  faced  with  cut 
stone,  the  central  building  replaced  by  another  faced  in  the  same  way  but  without  a 
dome.  The  central  building  accommodated  the  Library  and  the  Courts  of  Queen'i 
Bench  and  Common  Pleas  ;  the  West  Wing  the  Court  of  Chancery.  Part  of  the  East 
Wing  still  remains  the  property  of  the  Law  Society,  the  Law  School  being  built  to 
the  rear.  The  remainder  of  the  building  is  now  the  property  of  the  province  by  deed! 
of  July   1,   1874  and  November  26,    1885. 

The  East  Wing  was  somewhat  changed  interiorly  about  20  years  ago,  and 
the  Government  of  the  Province  has  within  the  last  few  years  made  some  addi- 
tions and   changes   in   the  way   of  Court   Rooms,   Judges'   Chambers,   etc. 

Those  acquainted  with  modern  Toronto  may  be  interested  to  know  that  Osgoode 
Hall   was  beyond   the   then  eiisting  limits  of  the  Town  of  York. 


47 

ruary  6th  of  that  year  (Hilary  Term,  2  Wm.  4),  and  all  meet- 
ings since  that  time  have  been  held  there. 

A  standing  committee  called  "The  Committee  of  (Economy" 
was  formed  February,  1833  (Hilary  Term,  3  Wm.  4),  and 
charged  with  "the  government,  management,  and  control  of 
the  ceconomical  household  and  domestic  arrangements  of 
Osgoode  Hall,"  and  their  regulations  are  still  extant  showing 
suitable  arrangements  made  for  the  accommodation  with 
rooms,  bed  and  board  (including  wine  for  the  Barristers  only). 
The  hall  was  much  used  by  Barristers  from  out  of  town  dur- 
ing term  time  when  they  came  up  on  motions  before  the  Court, 
and  more  by  students. 

In  the  meantime,  July  2,  1831  (Trinity  term,  1  and  2  Wm. 
2),  Convocation  took  away  the  necessity  of  a  certificate  from 
his  master  of  the  fitness  of  the  candidate  and  for  the  first  time 
an  examination  was  ordered  of  all  applying  for  admission  to 
the  books  of  the  Society,  which  was  to  be  "upon  full  and  strict 
examination  in  open  convocation  by  the  Benchers  present"  as 
to  "habits,  character  and  education."  The  questions  on  the 
subjects  prescribed  in  1820  were  put  through  the  Treasurer 
or  such  of  the  Benchers  as  might  be  appointed.  A  candidate 
for  call  to  the  bar  was  examined  in  like  manner.  At  the  same 
time  a  somewhat  curious  provision  was  made  that  all  mem- 
bers of  the  Society  who  had  not  taken  a  degree  in  it,  (i.  e.,  all 
Students-at-Law),  should  be  formed  into  classes  under  the 
Presidency  of  a  Barrister  for  the  reading  of  essays,  disputa- 
tion of  points  of  law  either  in  the  shape  of  cases  or  of  ques- 
tions, discussion  of  questions  of  general,  constitutional  and 
international  law,  stated  examinations  on  standard  authors, 
etc.,  etc.  Each  class  was  to  meet  at  least  eight  times  per  year, 
and  a  report  of  the  meetings  was  to  be  sent  to  the  Treasurer 
of  the  Law  Society.  This  made  a  kind  of  Students'  Society 
and  was  perhaps  intended  to  fill  the  place  of  the  Advocate 
Society  now  defunct. 

In  June,  1832  (Trinity  Term,  2  and  3  Wm.  4),  a  class  to  be 
called  "The  Trinity  Class  of  Students  of  the  Law  Society  of 
Upper  Canada,  "was  formed  to  meet  at  Osgoode  Hall  with 
much  the  same  objects  in  view." 

In  November  of  the  same  year  (Michaelmas  Term,  3  Wm. 


48 

4),  the  students  on  their  examination  for  admission  were 
divided  into  three  classes,  Junior  Class,  Senior  Class  and 
Optimes.  The  Junior  Class  to  be  examined  in  the  English 
and  Latin  languages,  in  mathematics  and  geography  or  his- 
tory; the  senior  class  in  the  English  and  Latin  languages, 
geometry,  algebra,  moral  philosophy,  or  the  Greek  language, 
astronomy  and  history ;  the  optimes  in  the  English,  Latin  and 
Greek  languages,  in  goemetry,  algebra,  moral  philosophy, 
metaphysics,  rhetoric  and  the  Belles  Lettres,  geography, 
astronomy  and  history.  No  advantage  was  derived  from  the 
higher  standing  except  that  the  grade  was  stated  in  the  certi- 
ficate of  admission  granted  to  the  successful  student. 

The  examination  for  call  was  "similar  to  that  passed  on 
admission  and  moreover  *  *  *  in  the  principles  of  the 
Law  of  England,  in  the  science  of  special  pleading,  the  law 
of  evidence,  the  law  relating  to  trials  at  Nisi  Prius  and  the 
practice  of  the  courts." 

All  this  was  of  consequence  in  the  case  of  Barristers,  but 
Attorneys  continued  for  some  time  to  be  admitted  as  before. 

As  has  been  mentioned,  the  section  of  the  Act  of  1797  in 
which  three  years  on  the  books  of  the  Society  were  required, 
was  repealed  in  1822  by  2  Geo.  4,  c.  5,  s.  3,  so  that  thereafter 
the  Law  Society  had  no  control  over  Articled  Clerks  as  such. 
Of  course  by  far  the  greater  number  of  Articled  Clerks  were 
also  Students-at-Law,  and  the  Society  had  control  over  them 
in  that  capacity;  but  no  examination  could  be  prescribed  for 
admission  as  attorney;  that  was  for  the  Courts — and  tbe 
Courts  prescribed  none. 

While  the  Law  Society  made  no  arrangements  for  the 
education  of  students,  it  should  be  mentioned  that  the  scheme 
for  a  Provincial  University  submitted  to  the  Governor  in  1826 
provided  for  a  Professor  of  Law  and  a  course  in  Civil  and 
Public  Law.  King's  College  was  opened  in  1843,  and  had  on 
its  staff  a  Professor  of  Law.  In  1850  the  college  became  the 
University  of  Toronto,  and  the  lectures  in  law  continued  till 
1853,  when  the  chair  was  abolished15.    The  other  universities 


1ETbe  first  Professor  of  Law  was  William  Hume  Blake,  B.  A.  (T.  C.  D.)  afterwards 
the  Chancellor  of  Upper  Canada,  the  father  of  the  Hons.  Edward  and  S.  H.  Blake.  Dur- 
ing his  illness,  his  place  was  filled  by  Mr.  (afterwards  Chief  Justice)  Draper,  and  Mr. 
(afterwards  Vice-Chancellor)  Esten.  On  Blake  resigning  in  1848,  he  was  succeeded 
by  Skeffington  O'Connor  LL.  D.  (T.  C  D.)  who  was  afterwards  (in  1803.)  a  Justice  of 
the  Queen's  Bench. 


49 

had  aud  have  Faculties  of  Law,  but,  as  iu  the  present  system 
iu  the  University  of  Toronto  the  lectures  are  of  an  academic 
nature,  Constitutional  Law,  Federal  Law,  Roman  Law  and 
the  like. 

Such  lectures  were  of  little  use  to  teach  a  lawyer  his  busi- 
ness and  the  want  of  any  safeguard  against  a  licensed  prac- 
titioner being  ignorant  of  his  profession  was  a  matter  of  com- 
mon concern.  As  a  legal  writer  says  a  little  later  (1855),  1 
Can.  L.  J.,  0.  S.,  at  p.  163. 

"Existing  laws  afford  no  guarantee  of  fitness.  A  young 
man  whose  only  qualification  for  entering  the  study  of  the 
law  is  ability  to  read  and  write,  may  be  ai'ticled  to  an  Attorney, 
spend  five  years  copying  and  serving  papers  or  idly  kicking 
his  heels  against  the  office  desk,  or  in  doing  the  dirty  work  of 
a  disreputable  practitioner.  At  the  end  of  that  time,  armed 
with  a  certificate  of  service,  he  claims  to  be  sworn  in  as  an 
attorney  of  Her  Majesty's  Court,  and  is  sworn  in  accordingly. 
He  may  know  nothing  whatever  of  professional  duties,  may  in 
fact  be  grossly  illiterate  and  deficient  in  every  requirement 
that  would  enable  him  to  act  with  safety  and  advantage  for 
a  client;  and  yet  the  law  entitles  him,  simply  on  proof  of 
service  under  articles,  to  the  certificate  enabling  the  holder  to 
undertake  the  most  important  duties  of  an  Attorney." 

An  editorial  in  the  following  year,  1856,  2  Can.  L.  J.,  0.  S., 
at  p.  50,  after  pointing  out  the  precaution  taken  to  secure  a 
learned  Bar  by  an  examination,  preliminary  and  final,  pro- 
ceeds: "The  Attorney  is  subject  to  no  examination  what- 
ever, preliminary  or  final.  The  Barrister  must  have  proved 
his  fitness,  the  fitness  of  the  attorney  is  presumed." 

The  Legislature  at  length  gave  the  Law  Society  jurisdiction 
over  Attorneys  as  well  as  Barristers.  In  1857,  the  Act  20  Vic. 
c.  63.  (Can.)  required  the  Law  Society,  before  any  person 
should  be  admitted  as  an  attorney  or  Solicitor  (the  Court  of 
Chancery  had  been  instituted  in  1837  and  reorganized  in  1849, 
and  practitioners  of  that  Court  corresponding  to  Attorneys  in 
the  Common  Law  Courts  were  styled  "Solicitors" — prac- 
tically all  Attorneys  were  Solicitors  and  vice  versa),  "to  ex- 
amine and  enquire  by  such  ways  and  means  as  they  should 
think  proper  touching  the  fitness  and  capacity  of  such  person 


50 

to  act  as  an  Attorney  or  Solicitor;"  and  then  and  not  otherwise 
the  Judges  might,  on  production  of  the  Law  Society's  Certifi- 
cate of  fitness,  admit  the  candidate  as  an  Attorney  and  Solic- 
itor ;  and  this  still  is  the  law. 

No  Court  can  hear  a  Barrister  who  has  not  been  called  by 
the  Society.  No  Court  can  admit  a  Solicitor  without  the  certi- 
ficate of  the  Society.  The  Society  is  the  sole  judge  of  the 
fitness  and  capacity  of  either,  and  the  legal  profession  is 
master  in  its  own  house. 

The  Statute  of  1857  required  Articles  of  Clerkship  to  be 
filed  in  the  office  of  the  Clerk  of  the  Crown  and  Pleas  within 
three  months  of  their  execution;  this  prevented  post-dating 
and  fraud.  Every  Articled  Clerk  was  required  to  attend  the 
sittings  of  the  Courts  at  Osgoode  Hall  during  at  least  two 
terms  under  rules  to  be  laid  down  by  the  Law  Society16. 

In  August,  1859  (Trinity  Term,  23  Vic),  the  rules  were 
recast.  Students-at-Law  on  tbeir  admission  were  classed: 
1 — University  Class;  2 — Senior  Class  and  3 — Junior  Class. 
The  first  class  were  graduates  of  a  British  University  and 
were  examined  on  one  or  more  of  the  following  books: 
Homer's  Iliad,  Book  1;  Lucian,  Charon,  Life  or  Dream  of 
Lucian  and  Timon;  Horace,  Odes;  Mathematics,  Euclid,  Bb. 
1,  2,  3,  4,  and  6,  or  Legendre's  Geometrie,  Bb.  1,  2,  3  and  4, 
Hind's  Algebra;  Metaphysics,  Walker's  or  Whately's  Logic, 
and  Locke  on  the  Human  Understanding;  Herschell's 
Astronomy;  Ancient  and  Modern  History.  For  the  Senior 
Class  the  books  and  subjects  named  for  the  University  Class. 
For  the  Junior  Class,  Horace,  Odes,  Bb.  1  and  3 ;  Mathematics, 
Euclid,  Bb.  1,  2  and  3,  or  Legendre's  Groemetrie  by  Davies, 
Bb.  1,  and  3,  with  problems. 

An  applicant  who,  having  his  degree,  passed  the  examina- 
tion for  the  University  Class  could  be  called  in  three  years 
instead  of  five.  If  he  failed,  unless  rejected  in  toto,  he 
dropped  into  the  Junior  Class  as  was  the  case  with  an  appli- 
cant for  the  senior  class.  There  was  no  other  than  sentimental 
advantage  in  passing  for  the  senior  rather  than  the  junior 


'"This  legislation,   much   needed  and  very   valuable,   was  due   in   great   measure   to 
Hon  Robert  Baldwin,  Treasurer,  1847  and  1S50-1858. 


51 

class ;  the  time  was  not  shortened  for  a  member  of  the  senior 
class17. 

Education  was  now  provided  for  all  those  proposing  to 
become  Barristers.  Every  Student-at-Law  was  obliged  to 
attend  for  four  terms  all  the  lectures  given  by  the  lecturers  of 
the  Society,  two  in  number,  in  Law  and  Equity  respectively18, 
who  were  also  examiners  for  call. 

On  the  examination  for  call,  there  were  two  classes,  "Call" 
simply,  and  "Call  with  Honors."  The  former  was  examined 
on  Blackstone's  Commentaries,  Bk.  1,  Addison  on  Contracts, 
Smith's  Mercantile  Law,  Williams  on  Real  Property,  Story's 
Equity  Jurisprudence,  Stephen  on  Pleading,  Taylor  on  Evi- 
dence, Byles  on  Bills,  Public  Statutes  relating  to  Upper 
Canada,  Pleadings  and  other  books  and  subjects  as  the 
Benchers  or  Examiners  might  prescribe19. 

By  this  time  the  use  of  Osgoode  Hall  as  a  boarding  house 
had  come  to  an  end,  but  still  Articled  Clerks  were  obliged 
by  Statute  to  keep  two  terms.  They  did  not  take  the  lectures 
as  Articled  Clerks,  but  as  Students-at-Law  if  they  were  such, 
just  as  Students-at-Law  as  such  were  no  longer  required  to 
keep  terms  as  such,  but  if  Articled  Clerks  they  must  keep  two 
terms  as  Articled  Clerks.  The  Student-at-Law  passed  a 
preliminary  examination,  the  Articled  Clerk  did  not. 
In  the  first  Parliament  of  the  Province  of  Ontario20,  by 
Statute  (1868),  31  Vic.  23,  it  was  provided  that  an  Attorney 
or  Solicitor  must  during  the  year  next  but  two  before  his  final 
examination  pass  an  examination  to  the  satisfaction  of  the 


17Applicants  were  examined  in  the  presence  of  a  standing  committee  of  the 
Benchers,  but  by  the  "Examiner  for  Matriculation."  Mr.  Hugh  N.  Gwynne,  B.  A.  (T. 
C.  D. )   was  appointed  to  this  office  ;  he  had  been  from  1842  Secretary  and  Librarian. 


"There  had  since  1855  been  temporary  lecturers  appointed,  but  in  March  1S58 
S.  H.  Strong  (afterwards  Hon.  Sir.  Henry  Strong.  Chief  Justice  of  Canada)  was  per- 
manently appointed  Lecturer  in  Equity,  and  J.  T.  Anderson,  Esq.,  in  Law.  See  4, 
Canada  Law  Journal  O.  S.  60.  Strong  was  one  of  the  ablest  equity  lawyers  Canada 
ever  produced.  On  the  permanent  establishment  of  the  Osgoode  Hall  Law  School,  it 
was  hoped  for  some  time  that  he  would  become  its  first  principal,  but  he  finally  de- 
clined the  offer. 


'"The  Examinations  for  admission  was  conducted  orally  by  the  "Examiner  for 
Call"  in  the  presence  of  a  Committee  of  the  Benchers.  Those  for  Call  and  Certifi- 
e:it<-  were  ursi  m  writing  under  the  supervision  of  the  "Examiners  for  Call"  and  if 
50%  were  taken  by  the  Candidate  he  then  went  up  for  an  oral  examination  by  the 
Benchers  in  Convocation  :   if  50%   were  not  taken,  the  Candidate  failed. 

The  examinations  were  fairly  stiff.  Examples  may  be  scon  in  (1860),  6  Can.  L.  J. 
O.  S.  31,  78.  Often  a  large  percentage  of  those  examined  were  refused  certificates. 
At  one  examination  as  many  as  14  out  of  22  candidates,  nearly  65%,  failed. 

"•wnat  had  been  for  many  years  the  Province  of  Upper  Canada  became  the  Prov- 
ince of  Ontario  July  1,  1867,  by  the  British  American   Art. 


52 

Law  Society  and  another  to  its  satisfaction  not  less  than  one 
year  thereafter. 

I  do  not  stop  to  detail  what  was  done  under  this  Act  as  it 
merges  into  that  next  to  be  mentioned. 

The  state  of  affairs  was  improved  somewhat,  but  not  suffi- 
ciently. In  1872  the  Law  Society's  petition  to  the  Legislature 
to  enable  them  to  extend  the  advantages  of  legal  education  was 
acceded  to,  and  a  new  Act  passed,  35  Vic.  c.  6.  That  enabled 
the  Society  to  require  that  all  Clerks  thereafter  to  be  articled 
should  pass  a  preliminary  examination,  and  that  their  term 
of  service  under  their  articles  should  not  run  until  they  had 
passed  this  examination.  The  Benchers  also  were  empowered 
to  make  rules  for  the  improvement  of  legal  education,  appoint 
readers  and  lecturers,  require  the  attendance  of  Articled 
Clerks  and  Students-at-Law  at  reading  and  lectures  and  an 
examination  thereon  as  a  prequisite  to  call  to  the  bar  or 
admission  as  an  attorney,  etc.21 

The  Benchers  accordingly,  June  7,  1872,  laid  down  a  curri- 
culum for  the  preliminary  examination  of  the  Articled  Clerks ; 
Caesar's  Commentaries,  Bb.  5  and  6;  Arithmetic;  Euclid  Bb. 
1,  2  and  3 ;  Outlines  of  Modern  Geography ;  History  of  Eng- 
land (W.  Douglas-Hamilton) ;  English  Grammar  and  Com- 
position; Elements  of  Bookkeeping.  The  Students-at-Law 
passed  an  examination  on  Horace,  Odes  Bk.  3;  Virgil's 
Aeneid,  Bk.  6;  Caesar's  Commentaries,  Bb.  5  and  6,  Cicero, 
Pro  Milone ;  Mathematics,  Arithmetic,  Euclid  Bb.  1,  2  and  3, 
Algebra  to  end  of  Quadratic  Equations;  English  History  (W. 
Douglas-Hamilton) ;  Outlines  of  Modern  Geography,  English 
Grammar  and  Composition.  It  will  be  seen  that  the  curricu- 
la have  much  in  common,  Caesar,  Arithmetic,  Euclid,  Geogra- 
phy, History  of  England,  English  Grammar  and  Composi- 
tion.     The  Student-at-Law  took  also  Horace,  Virgil,  Cicero, 


^This  Act  was  promoted  by  the  Han  (afterwards  Sir)  Oliver  Mowat,  the  Prime 
Minister,  who  had  been  a  Vice  Chancellor  and  took  a  great  interest  in  the  profession  ; 
but  the  matter  had  received  long  and  careful  consideration  by  the  Benchers,  culmin- 
ating in  a  Report  by  the  Committee  on  Legal  Education,  December  8.  1871  (Michael- 
mas Term.  35  Vic).  The  Chairman  of  this  Committee  was  Thomas  Moss,  afterwards 
Chief  Justice  of  Ontario  ;  and  the  Report  recommended  an  application  to  Parliament. 
The  Act  of  1S6S  was  generally  known  as  Blake's  Act  from  its  author  Hon.  Edward 
Blake.  Prime  Minister  of  Ontario.  Member  of  the  House  of  Commons  of  Canada  and 
afterwards  Member  of  the  Imperial  House  of  Commons.  He  was  long  a  Bencher 
and   for   some   years   Treasurer   of   the   Law   Society. 


53 

Algebra;  the  Articled  Clerk,  bookkeeping22.  There  was, 
however,  a  rule  that  no  one  admitted  as  a  student  at  law  need 
pass  a  preliminary  examination  as  an  Articled  Clerk.  Grad- 
uates in  Arts  of  a  British  University  were  not  subjected  to 
any  examination,  and  there  was  no  longer  to  be  any  division 
into  Senior  and  Junior  classes. 

A  Law  School  was  established  with  four  lecturers:  1 — 
General  Jurisprudence,  2 — Real  Property,  3 — Commercial  and 
Criminal  Law  and  4 — Equity;  but  attendance  on  the  lectures 
was  made  voluntary.  There  was  no  building,  the  lectures 
were  given  at  Osgoode  Hall  and  were  fairly  well  attended. 

Every  Student-at-Law  before  his  final  examination  for  Call 
was  required  to  pass  two  intermediate  examinations,  the  first 
in  his  third  year,  the  second  in  his  fourth.  These  corre- 
sponded to  the  two  examinations  prescribed  for  Articled 
Clerks  by  the  Statute  of  1868.  The  curriculum  prescribed  for 
each  was  the  same,  namely,  for  the  first  Intermediate,  Wil- 
liams' Real  Property,  Smith's  Manual  of  Equity,  Smith's 
Manual  of  Common  Law,  Act  respecting  the  Court  of  Chan- 
cery, Consolidated  Statutes  of  Upper  Canada,  chapters  12, 
42  and  44.  For  the  second  Intermediate,  Leith's  Blackstone23; 
Greenwood  on  Conveyancing  (Chapters  on  Agreements,  Sales, 
Purchases,  Leases,  Mortgages,  Wills),  Snell's  Treatise  on 
Equity,  Broom's  Common  Law,  Consolidated  Statutes  of 
Upper  Canada,  c.  8,  Statute  of  Canada,  29  Vic.  c.  2824,  Insol- 
vent Act.  Pour  scholarships  of  considerable  value  were  estab- 
lished, one  for  students  under  one  year's  standing,  one  for 
for  those  under  two,  one  for  those  under  three  and  one  for 
those  under  four.  The  curricula  were  for  the  first,  Stephen's 
Blackstone,  vol.  1;  Stephen  on  Pleading,  Williams  on  Per- 


^These  examinations  were  conducted  by  the  "Examiner  for  Matriculation"  Mr. 
Gwynne,  before  a  Committee  of  Benchers  appointed  for  that  purpose  and  were  partly 
ore  tenua.  Papers  were  prepared  and  printed  in  (1)  Latin,  (2)  Mathematics,  (3)  His- 
tory, Geography,  English  Grammar  and  Composition.  If  the  candidate  did  not  pass 
a  satisfactory  written  examination  he  could  not  offer  himself  for  the  oral.  All 
distinction   of   Senior  and   Junior   Class  was   abolished. 


-^This  was  an  edition  of  that  part  of  Blackstone's  Commentaries  which  relates  to 
Real  Property.  The  Editor,  Mr.  Alexander  Leith,  Q.  C.  was  a  very  distinguished 
Real  Property  lawyer  in  Toronto,  and  in  this  work  he  gave  the  law  as  modified  by 
our  legislation  so  as  to  adapt  Blackstone  to  the  circumstances  of  this  Province; 
otherwise  of  course  Blackstone  would  be  very  misleading.  It  has  always  been  the 
policy  of  the  Law   Society  to  prescribe  Ontario  books  where  possible. 

2,That  is,  the  Statutory  law  of  Property  and  Trusts  In  Upper  Canada.  Before  the 
British  America  Act  of  18G7,  the  two  Canadas  had  been  for  about  a  quarter  of  a  cen- 
tury  united   In   one   Province  of  Canada. 


54 

sonal  Property,  Griffith's  Institutes  of  Equity,  Consol.  Stat. 
U.  C.  cc.  12,  43.  For  the  second,  Williams  on  Real  Property, 
Best  on  Evidence,  Smith  on  Contracts,  Snell's  Treatise  on 
Equity,  the  Registry  Act25.  For  the  third,  Real  Property, 
Statutes  relating  to  Ontario,  Stephen's  Biackstone,  Book  V, 
Byles  on  Bills,  Broom's  Legal  Maxims,  Story's  Equity  Juris- 
prudence, Fisher  on  Mortgages,  vols.  1  and  2,  chapters  10,  11 
and  12.  For  the  fourth,  Smith's  Real  and  Personal  Property, 
Russell  on  Crimes,  Common  Law  Pleading  and  Practice, 
Benjamin  on  Sales,  Dart  on  Vendors  and  Purchasers,  Lewis's 
Equity  Pleading,  Equity  Pleading  and  Practice  of  this  Prov- 
ince. 

The  Articled  Clerk  bad  a  final  Examination  on  Leith's 
Biackstone23,  Watkins  on  Conveyancing,  Ninth  Edition, 
Smith's  Mercantile  Law,  Story's  Equity  Jurisprudence,  Leake 
on  Contracts,  The  Statute  Law,  The  Pleading  and  Practice  of 
the  Courts.  The  Student-at-Law  if  he  did  not  go  in  for 
honors,  Biackstone,  Volume  1,  Leake  on  Contracts,  Watkins 
on  Conveyancing,  Story's  Equity  Jurisprudence,  Stephen  on 
Pleading,  Lewis 's  Equity  Pleading,  Dart  on  Vendor  and  Pur- 
chaser, Taylor  on  Evidence,  Byles  on  Bills,  The  Statute  Law, 
The  Pleading  and  Practice  of  the  Courts ;  and  if  he  desired 
Honors,  also  Russell  on  Crimes,  Broom's  Legal  Maxims, 
Lindley  on  Partnership,  Fisher  on  Mortgages,  Benjamin  on 
Sales,  Jarman  on  Wills,  Von  Savigny's  Private  International 
Law  (Guthrie's  Edition),  Maine's  Ancient  Law.  All  final 
candidates  might  be  and  not  infrequently  were  examined  also 
on  the  Intermediate  subjects. 

The  Law  School  thus  established  began  its  career  in  October, 
187326,  and  very  many  students  availed  themselves  of  the 


^This  is,  the  Statutory  provision  as  to  Registration  of  Titles  to  Real  Estate. 


2fThe  Staff  was  composed  of  Alexander  Leith,  President  and  Lecturer  in  Real 
Property ;  James  Bethune,  Lecturer  in  General  Jurisprudence ;  Zebuion  A.  Lash,  Lec- 
turer in  Commercial  and  Common  Law,  and  Charles  Moss,  Lecturer  in  Equity.  Mr. 
Leith  was  the  well-known  Real  Estate  Lawyer,  editor  of  Biackstone,  vol.  2.  Mr. 
Bethune  became  one  of  the  most  prominent  men  at  the  Bar,  a  member  of  the  Legis- 
lature, whose  too  early  death  was  much  lamented.  Mr.  Lash  (now  K.  C)  was 
afterward  Deputy  Minister  of  Justice  of  the  Dominion,  but  returned  to  active  prac- 
tice and  still  adorns  the  Bar.     Mr.  Moss  was  afterwards  Chief  Justice  of  Ontario. 

In  December,  1S74,  Mr.  Bethune  resigned  and  was  succeeded  by  William  Mulock 
(now    Sir   William   Mulock,    Chief   Justice    of   the    Exchequer    Division). 

In  May,  1S76  (Trinity  Term),  the  term  of  engagement  for  Lecturers  was  made 
one,  two,  three  and  four  years  respectively,  and  they  were  made  ineligible  for  re- 
appointment. Mr.  Moss  was  elected  for  one  year  and  made  President,  lecturing  on 
Common  and  Commercial  Law ;  Mr.  Mulock  for  two,  lecturing  on  Equity :  Mr.  John 
S.  Ewart  (now  K.  C.)  for  three  years,  lecturing  on  Real  Property,  and  T.  D.  Delamere 
(afterwards  K.  C,  now  deceased),  for  four  years,  lecturing  on  Criminal  Law  and  Law 
of  Torts.  After  the  abolition  of  the  Law  School,  Mr.  Ewart  for  some  time  gave  a 
weekly  lecture  on  Chancery  practice  and  Mr.  Delamere  on  Common  Law  Practice. 


55 

opportunities  thus  given  for  a  legal  education.  Students  who 
would  otherwise  have  served  their  term  in  the  country  were 
attracted  to  Toronto.  It  became  a  matter  of  complaint  of  the 
country  practitioners  that  they  were  deprived  of  their  clerks — 
particularly  so  as  the  term  of  service  was  reduced  by  attend- 
ance on  lectures  and  passing  the  law  school  examinations.  A 
student  could  reduce  his  term  by  from  six  to  eighteen  months 
by  this  means.  One  requires  no  imagination  to  conceive  the 
very  great  inducement  this  was  to  a  capable  and  ambitious 
student. 

Finally  by  a  vote  of  8  to  4,  Convocation  determined,  Novem- 
ber 24,  1877,  Michaelmas  Term,  to  abolish  the  Law  School 
from  and  after  the  last  day  of  the  succeeding  Easter  Term, 
June,  1878. 

This  step  was  the  subject  of  much  discussion  in  the  profes- 
sion and  in  the  press,  legal  and  lay.  All  kinds  of  opinion 
were  expressed  as  to  the  means,  but  most  agreed  as  to  the 
propriety  of  some  form  of  education  being  provided  for.  It 
had  been  proposed  that  the  Law  School  should  be  affiliated 
with  the  University  of  Toronto,  but  that  course  had  not  recom- 
mended itself  to  Convocation ;  a  law  college  was  suggested  by 
some.  In  May,  1881,  the  formation  of  associations  like  the 
Osgoode  Legal  and  Literary  Society  throughout  the  Province 
was  recommended,  with  a  sufficient  number  of  students  to 
ensure  a  good  attendance  and  of  Barristers  disposed  to  deliver 
lectures.  It  was  recognized  that  the  Law  Society  would  not 
create  or  direct  these  societies,  but  could  only  recommend. 
Some  such  were  formed,  but  did  not  last  long  nor  were  they 
very  useful  while  tbey  did  last. 

Petitions  came  in  from  students  in  large  numbers;  and  in 
Michaelmas  Term  of  1881,  the  Society  re-established  the  law 
School  for  a  period  of  two  years  to  begin  December  12,  1881. 
with  four  lectures  the  senior  of  whom  was  to  be  chairman, 
attendance  still  to  be  voluntary27.  In  view  of  the  many  peti- 
tions for  the  re-establishment  of  the  school,  the  attendance 


^The  Lecturers  appointed  were  Thomas  Hodgins,  Q.  C.  (afterwards  Master-in- 
Ordinary  of  the  Supreme  Court  of  Judicature  for  Ontario),  Chairman  and  Lecturer  on 
Constitutional  Law,  etc.  Thomas  D.  Delamere,  already  mentioned,  who  lectured  on 
Pleading  and  Practice,  Joseph  E.  McDougall  (afterwards  Q.  C.  and  Judge  of  the 
County  Court  of  the  County  of  York)  and  E.  Douglas  Armour  (afterwards  K  C  ) 
author  of  several  works  on  Keal  Property. 


56 

was  very  disappointing,  but  it  was  decided  to  try  the  experi- 
ment till  the  end  of  the  two-year  term. 

In  June,  1883,  the  school  was  continued  till  the  early  Easter 
Term,  188428.  A  proposition  to  establish  law  schools  out- 
side of  Toronto  failed.  In  Easter  Term,  1884,  the  school  was 
continued  until  the  last  day  of  Easter  Term,  1886.  In  1887 
the  project  of  establishing  a  teaching  faculty  in  the  University 
of  Toronto  was  taken  up  by  a  committee  of  the  Benchers  with 
the  Senate  of  the  University,  and  an  elaborate  scheme  was 
drawn  up.  This  was  vigorously  criticised  not  only  in  convo- 
cation, but  out  of  it,  especially  by  those  interested  in  other 
universities29.  The  committee  was  reappointed  with  addi- 
tional members  and  directed  to  take  the  question  up  with  all 
the  universities  in  the  Province;  they  did  so,  but  in  the  long 
run  without  success30. 

January  4,  1889,  it  was  decided  "to  continue  and  reorganize 
the  school  and  to  appoint  a  President31,  who  should  have 
supervision  and  general  direction  of  the  school,"  not  less  than 
two  lecturers  and  two  examiners — -the  lecturers  theretofore 
having  been  also  examiners.  Attendance  was  made  com- 
pulsory for  the  first  time.  All  Students-at-Law  and  Articled 
Clerks  were  required  to  take  the  second  and  third  years  of 
the  school  course.  If  they  resided  in  Toronto  during  the  last 
three  years  they  must  attend  the  full  three  years'  course.  A 
small  fee  was  imposed,  by  no  means  enough  to  pay  for  the 
support  of  the  school. 

Lectures  had  been  given  in  Osgoode  Hall,  but  for  a  long 


2sThe  Lecturers  were  Messrs  Delamere  and  Armour  already  named.     W.  A.  Reeve 
(afterwards  Principal  and  a  Q.  C. )   and  Alfred  H.  Marsh    (afterwards  Q.  C). 


-'"The  scheme  will  be  found  printed  at  length  in  24  Can.  L.  J.  N.   S.  pp.  130  sqq. 
See  one  criticism  at  pp.  151-153  of  the  same  volume  ;  another  pp.  182-173. 


The   report   is   printed   in    24    Can.    L.    J.   N.    S.    at   pp.    393-397 ;    another   will   be 
found  in   25  Can.  L.  J.  N.   S.  51. 


mIt  had  been  hoped  to  secure  Mr.  Justice  Strong  of  the  Supreme  Court  of  Canada 
for  this  position,  but  he  declined,  and,  July  3,  1889,  W.  A.  Reeve,  Q.  'C,  was  appointed 
Principal. 

The  new  Principal  was  instructed  to  visit  the  Law  Schools  in  New  York,  Massa- 
chusetts and  such  other  places  as  might  be  thought  advisable,  with  Messrs.  E.  Mar- 
tin, Q.  C,  and  Charles  Moss,  Q.  C,  to  acquire  information  on  the  Law  School  sys- 
tems in  vogue.  He  did  so,  and  reported.  Sept.  3.  1889,  to  Convocation,  and  the 
School  was  formally  opened,  October  7,  1889.  The  Lecturers  were  Messrs  Marsh  and 
Armour;  the  Examiners  were  Mr.  P.  H.  Drayton  (afterwards  Official  Arbitrator)  and 
Mr.   R.   E.   Kingsford    (afterwards   Police  Magistrate,   Toronto). 

When  in  Easter  Term,  1890,  the  number  of  lecturers  was  increased  to  four, 
Messrs  Drayton  and  Kingsford  were  appointed  Lecturers  and  Messrs  F.  J.  Joseph 
and   Aytoun-Finlay   and   Malcolm   Cameron,   Examiners. 


57 

time  the  proposition  had  been  under  consideration  to  erect 
a  building  especially  for  a  Law  School.  Tenders  had  been 
obtained  as  early  as  December,  1880,  but  the  matter  dragged. 
It  was  taken  up  in  earnest  in  the  fall  of  1889,  plans  were 
obtained  and  building  proceeded  with  in  1891  and  was  ready 
in  1892. 

The  society  in  1889  dropped  their  preliminary  examination, 
the  last  to  be  Hilary  Term,  1890.  Thereafter  the  examina- 
tion of  the  University  was  accepted  instead,  and  now  a  degree 
of  Arts  or  Law  of  a  British  University  or  Graduation  Diploma 
of  the  Royal  Military  College,  the  examination  of  a  university 
on  prescribed  subjects,  or  a  matriculation  certificate,  a  certifi- 
cate of  the  further  examination  at  the  R.  M.  C.  is  sufficient,  and 
one  of  them  is  required. 

I  shall  not  trace  the  trifling  changes  which  have  been  made 
in  the  curriculum  of  the  Law  School;  but  here  set  out  the 
present32. 

SUBJECTS  OF  STUDY. 

m. 

FIRST  YEAR. 
GENERAL  JURISPRUDENCE. 

Holland's  Elements  of  Jurisprudence. 

CONTRACTS. 

Anson  on  Contracts. 

REAL  PROPERTY. 

Williams  on  Real  Property,  except  Parts  III  and  VII. 
The  Land  Titles  Act. 

COMMON   LAW. 

Odger's  Common  Law. 


^The  present  Staff  is  as  follows : 

FACULTY. 

Principal : — Newman    Wright    Hoyles.   B.   A.,   LL.   D..   K.    C. 

Lecturers: — John   King,    M.   A..    K.    C.,   John    Delatre   Falconhridge,    M.    A.,   LL    B 
John   Shirley   Dennison,   K.   C,   Samuel    Hugh   Bradford,   B.   A..   K.  C. 

Demonstrators  : — Christopher  Charles  Robinson,  B.  A.  ;  Harold  William  Alexander 
Foster,    LL.    B. 

Examiners: — Archibald  Douglas  Armour.  M.  A.  Senior  Examiner,  Neil  Douglas 
McLean.  B.  A.,  Patrick  Kerwin,  George  Franklin  McFarlane,  LL.  B.,  John  Alexander 
Soule,  LL.  B. 


58 


CONSTITUTIONAL  HISTOBY  AND  LAW. 

Bourinot's  Manual  of  the  Constitutional  History  of 
Canada.  Todd's  Parliamentary  Government  in  the  Brit- 
ish Colonies  (second  edition  1894).  The  following 
portions,  viz : 

Chapter  2,  pages  25  to  63  inclusive. 
Chapter  3,  pages  73  to  83  inclusive. 
Chapter  4,  pages  107  to  128  inclusive. 
Chapter  5,  pages  155  to  184  inclusive. 
Chapter  6,  pages  200  to  208  inclusive. 
Chapter  7,  pages  209  to  246  inclusive. 
Chapter  8,  pages  247  to  300  inclusive. 
Chapter  9  pages  301  to  312  inclusive. 

EQUITY. 

Maitland's  Lectures  in  Equity. 

PBACTICE  AND  PROCEDURE. 

Judicature  Act  and  Eules  of  Practice. 

STATUTE  LAW. 

Such  Acts  and  parts  of  Acts  as  shall  be  prescribed  by 
the  Principal. 

SECOND  YEAR. 
CRIMINAL  LAW. 

The  Criminal  Statutes  of  Canada. 

REAL  PROPERTY. 

Kerr's  Student's  Blackstone,  Book  2.  Armour's  Real 
Property. 

PERSONAL  PROPERTY. 

Williams  on  Personal  Property. 

CONTRACTS. 

Pollock  on  Contracts. 

Rawlins  on  Specific  Performance. 

Pollock  on  Partnership. 

TORTS. 

Underbill  on  Torts. 

EQITY. 

H.  A.  Smith's  Principals  of  Equity. 
Underbill  on  Trusts. 

EVIDENCE. 

Powell  on  Evidence. 


59 


CONSTITUTIONAL  LAW. 

Lefroy's  Canada's  Federal  System. 

PRACTICE  AND  PEOCEDUEE. 

Statutes,  Rules  and  Orders  relating  to  the  jurisdiction, 
pleadings,  practice  and  procedure  of  the  Supreme  Court 
of  Canada,  the  Exchequer  Court  and  the  Courts  of 
Ontario. 

STATUTE  LAW. 

Such  Acts  and  parts  of  Acts  as  shall  be  prescribed  by 
the  Principal. 

EQUITY. 

Underbill  on  Trusts,  1914-15,  De  Colyar  on  Guarantees. 
Bell  and  Dunn  on  Mortgages,     1915-16,     De  Colyar  on 
Guarantees. 

TOETS. 

Pollock  on  Torts. 

Smith  on  Negligence,  2nd  edition. 

EVIDENCE. 

Best  on  Evidence. 

COMMEECIAL  LAW. 

Cbahners  on  Sales. 

Maclaren  on  Bills,  Notes  and  Cheques. 

PEIVATE  INTEENATIONAL  LAW. 

Foote's  Private  International  Jurisprudence. 

CONSTEUCTION   AND   OPEEATION    OF   STATUTES. 

Hardcastle's  Construction  and  Effects  of  Statutory  Law. 

PBACTICE  AND  PEOCEDUEE. 

Statutes,  Rules  and  Orders  relating  to  the  jurisdiction, 
pleadings,  practice  and  procedure  of  the  Supreme  Court 
of  Canada,  the  Exchequer  Court  and  the  Courts  of 
Ontario. 

COMPANY  LAW. 

The  Ontario  Companies  Act  and  Amendments.  The 
Companies  Act,  R.  S.  C.  Chap.  79,  and  amendments.  The 
Winding-up  Act,  R.  S.  C.  Chap.  144,  and  amendments. 
Palmer's  Company  Law. 

MUNICIPAL  LAW. 

The  Municipal  Act. 


60 

STATUTE  LAW. 

Such  Acts  and  parts  of  Acts  as  shall  be  prescribed  by  the 
Principal. 

NOTE. — In  the  examination  of  all  the  years,  students  are 
subject  to  be  examined  upon  the  matter  of  the  lectures  of 
those  years  respectively,  as  well  as  upon  the  text  books 
and  other  work  prescribed. 

Any  person  who  desires  to  qualify  for  the  practice  of  the 
law  as  a  Barrister  and  Solicitor  in  Ontario,  and  who  does 
not  come  under  the  rules  in  special  cases,  is  required : 
1 — To  be  admitted  into  the  Society  as  a  Student-at-Law. 
2 — To  serve  a  practising  Solicitor  as  his  clerk  for  the  pre- 
scribed period. 
3 — To  attend  lectures  at  the  Law  School  for  three  years. 
4 — To  pass  the  prescribed  examinations. 
5 — To  pay  the  prescribed  fees. 

(If  he  does  not  wish  to  be  admitted  as  a  solicitor  he  need 
not  serve  under  Articles  at  all,  but  must  attend  a  Barrister's 
Chambers  for  the  same  time.  This  is  in  practice  never  done 
now). 

The  time  of  service  for  a  graduate  is  three  years ;  for  a  non- 
graduate  five;  fee  for  admission  to  the  Society  is  $51,  school 
fees  per  term  $100,  for  call  to  the  bar  $100  and  for  admission 
as  Solicitor  $60.  The  title  "attorney"  has  not  been  in  use 
since  1881,  all  members  of  that  branch  of  the  profession  are 
now  called  solicitor33. 


raI  have  gone  thus  particularly  into  the  history  of  the  Law  Society  to  show  the 
variations  from  time  to  time  of  public  opinion  and  the  experiments  which  have  been 
tried.     Let  me  tabulate. 

BARRISTERS.  ATTORNEYS     (OR    SOLICITORS). 

1792  Adoption  of  French  Canadian  System,  all  for  five  years  under  articles,  examined 
before  the  Court  and  called  both  as  Advocates  and  Attorneys. 

1797     Must   be   five   years   on   Books   of  Must  have  been  under  Articles  five  years, 

Law  Society  and  the  same  time  in  Bar-  and  three  years  on   Books  of  the   So- 

rister's    Chambers.       No    examination.  ciety.     No  examination.    The  five  years 

The   five  years   requirement,   except  in  requirement,    except    in    special    cases, 

special   cases,   still   continues.  still  continues. 

1818  Examination  for  admission  to  the  Society  on  one  of  Cicero's  orations,  etc.,  be- 
fore  the  Benchers. 

1822  Attorneys,  no  longer  members  of  the  Law 

Society.     No   examination   required   at 


1825  Examination  on  Latin  Prose  and 
Poetical  Authors,  and  in  the  Mathe- 
matics before  the  Benchers. 

1828  Students  must  keep  four  Terms 
in  Court. 

1831  Formed  classes  for  educative  pur- 
poses. 

1832  And  especially  one  at  Osgoode 
Hall. 

1857 


any    time. 


Must  attend  two  terms  in  Court  and 
be  examined  and  certified  by  the  Law 
Society. 


61 

It  will  be  seen  that  the  Legislature  has  ultimately  placed 
in  the  hands  of  the  profession  not  only  the  regulation  but 
also  the  education  of  practitioners  of  all  kinds.  This  has 
proved  so  beneficial  that  the  like  provisions  have  been  ex- 
tended to  the  professions  of  Medicine,  Dentistry,  Pharmacy 
(the  Medical  Council  indeed  does  not  educate  owing  to  the  ex- 
istence of  our  efficient  established  Medical  Colleges).  There 
is  no  fear  of  the  standard  being  debased ;  no  advantage  is  de- 
rived by  the  profession  from  graduation  of  a  large  class,  i.  e. 
the  admission  of  a  great  number  to  the  Bar  who  will  be  com- 
petitors of  those  already  practising,  and  any  attempt  to  make 
the  standard  too  high  would  be  restrained  by  a  wholesome 
regard  for  public  opinion.  It  must  however  be  said  that 
though  it  has  twice  happened  in  the  history  of  the  Province 
(in  1794  and  1804),  that  the  Legislature  thought  there  were 
not  enough  lawyers,  it  is  hard  to  conceive  of  our  community 
(or  perhaps  any  other)  ever  thinking  that  again. 

It  will  be  seen  that  we  have  tried  all  the  methods  of  educa- 
tion that  can  be  suggested.  We  have  had  the  student  left  to 
the  teaching  of  a  master,  for  long  the  method  in  England. 
We  have  had  the  students  directed  to  band  themselves  to- 
gether in  Classes  for  mutual  benefit  and  with  lectures  from 
Barristers.  We  have  obliged  them  to  attend  terms  of  Court. 
We  have  tried  to  make  satisfactory  arrangements  with  the 
Universities.  All  these  have  proved  wholly  insufficient,  and 
in  the  long  run  the  lawyers  of  Ontario  have  put  their  hands 
into  their  own  pockets,  erected  a  Law  School  building,  en- 
gaged and  paid  lecturers  and  examiners  and  have  determined 
to  educate  the  young  men  to  become  competitors  of  them- 
selves ;  and  this  they  did  for  a  long  time  at  an  annual  loss 
of  a  considerable  amount.  That  I  think  can  fairly  be  called 
altruism  if  it  is  also  esprit  de  corps. 

We  should  have  been  much  better  satisfied  if  the  Universi- 
ties or  one  of  them  had  established  a  real  and  practical  Fac- 
ulty of  Law  with  a  curriculum  satisfactory  to  us;  but  we 
should  always  have  insisted  on  conducting  the  examinations 
for  Call  and  Admission  ourselves  just  as  is  done  in  Medicine, 


62 

Dentistry,  Pharmacy,  etc.  The  reasons  for  this  are  apparent 
and  need  not  be  specified. 

We  have  found,  too,  that  the  same  curriculum  should  be 
prescribed  for  all  lawyers  whether  Barristers  or  Solicitors, 
just  as  the  same  curriculum  is  prescribed  by  the  Medical 
Council  for  all  doctors  whether  surgeons  or  physicians. 

The  control  of  the  Law  Society  over  practitioners  is  com- 
plete and  it  is  exercised  without  flinching  though  judicially. 
The  accused  has  notice  of  the  charge  against  him  and  is  sum- 
moned to  attend  the  hearing  of  evidence.  He  may  cross-ex- 
amine by  self  or  counsel,  give  his  own  or  (and)  other  evi- 
dence and  in  all  respects  has  the  right  of  an  ordinary  litigant. 

Very  early  indeed  one  member  was  disbarred,  and  there 
has  never  been  any  hesitation  to  exercise  the  wholesome  jur- 
isdiction. 

We  have  continued  the  distinction  of  Barrister  and  Solici- 
tor. Although  all  but  a  very  few  have  from  the  beginning 
been  both  Barrister  and  Solicitor  that  has  not  been  univer- 
sal34, moreover  a  few  who  have  been  admitted  as  solicitor 
have  ceased  to  take  out  the  annual  license  to  practise  as  such ; 
about  4%  are  in  that  case,  a  rather  smaller  percentage  have 
never  been  called.  At  one  time  when  the  curriculum  and  pre- 
requisites were  different  from  the  two  branches  of  the  pro- 
fession, the  omission  to  qualify  for  both  was  not  unnatural  or 
uncommon ;  but  now  the  curriculum  is  exactly  the  same,  and 
it  may  be  confidently  expected  that  this  will  be  even  less  com- 
mon.    The  Articled  Clerk  serving  in  the  office  of  a  solicitor 


"There  was  a  time  about  fifty  years  ago  when  some  attorneys  seemed  to  think 
they  were  entitled  to  act  as  Counsel  in  the  County  Courts  and  with  the  usual  costume 
of  the  Barrister:      (See  2  Can.  L.  J.  N.  S.  p.  253)   but  this  was  soon  checked. 

The  Barrister  is  clothed  in  black  with  white  linen  and  necktie  (or  bands),  and  a 
black  gown.  If  he  is  a  King's  Counsel  his  costume  is  of  a  peculiar  cut  corresponding 
to  the  usual  costume  of  a  gentlemen  in  Queen  Anne's  time,  his  gown  is  also  of  a 
peculiar  cut  and  made  of  silk  ;  the  Utter  Barrister,  i.  e.,  one  not  a  K.  C,  wears  black 
clothes  of  any  seemly  cut  and  a  "Barrister's  Gown"  of  stuff. 

In  the  day  when  cloth  bags  were  commonly  carried — say  thirty  years  ago — the 
Attorney  carried  one  of  black  colour  as  did  the  student ;  the  Barrister's  was  blue,  the 
Queen's  (King's)  Counsel's  red,  and  the  Judge's  green.  These  are  still  occasionally 
seen,  and  it  would  be  as  grave  a  breach  of  decorum  for  one  to  carry  the  bag  of  an- 
other grade  as  for  a  corporal  to  carry  a  colonel's  insignia  or  vice  versa.  Most,  how- 
ever, of  all  grades  now  carry  a  black  leather  bag,  the  "brief-bag"  as  it  is  called. 

Since  1857  the  branches  of  the  profession  have  been  gradually  assimilated,  and 
the  courses  of  study  continually  extended  until  the  present  time  when  the  courses  are 
identical   and   reasonably   difficult. 

The  first  and  second  Attorneys  General,  being  English  Barristers,  did  not  sign 
the  Attorney's  Roll,  and  a  few  others  from  the  mother-land  were  in  the  same  condi- 
tion. In  the  first  twenty-five  years  of  the  Law  Society  only  3  out  of  64  Attorneys 
did  not  become  Barristers, — less  than  5%.  The  proportion  increased  after  the  Act  of 
1822,  so  that  by  the  time  the  Act  of  1S87  was  passed,  the  percentage  was  nearly  30%. 
This  tendency  was  checked  by  the  Act  of  1S57.  and  now  the  percentage  is  negligible. 


63 

Is  at  the  same  time  attending  the  Chambers  of  the  Barrister. 

This  apparent  anomaly  is  only  apparent  and  not  real. 
Just  as  in  the  sister  profession  of  medicine  practically  every 
one  on  this  continent  is  educated  in  both  medicine  and  sur- 
gery, and  many  become  not  only  M.  D.  but  also  C.  M. ;  they 
are  both  physicians  and  surgeons  and  all  have  the  same  cur- 
riculum and  examination.  This  is  not  so  in  England.  The 
Royal  College  of  Physicians  and  the  Royal  College  of  Sur- 
geons are  not  the  same ;  just  as  there  the  Barrister  is  not  a 
Solicitor  or  the  Solicitor  a  Barrister. 

Nevertheless  it  is  recognized  on  this  Continent  as  well  that 
tlic  office  of  the  Surgeon  is  not  the  same  as  that  of  the  Physi- 
cian although  the  dividing  line  may  often  be  uncertain.  And 
so,  no  matter  what  the  name,  the  office  of  the  Solicitor  is  not 
the  same  as  that  of  the  Barrister,  although  the  dividing  line  is 
often  uncertain.  In  Ontario  many  doctors  devote  themselves 
mainly  or  wholly  to  surgery  and  do  not  meddle  with  medicine 
although  wholly  qualified  and  licensed  as  Physicians  and  so 
some  Lawyers  devote  themselves  mainly  or  wholly  to  "Coun- 
sel Work"  the  function  of  the  Barrister.  This  has  been  found 
to  be  of  very  great  advantage  as  he  who  devotes  himself  to 
surgery  acquires  a  skill  and  dexterity  to  which  the  ordinary 
"General  Practitioner"  cannot  attain,  so  he  who  devotes  him- 
self to  conducting  cases  in  Trial  and  Appellate  Courts  attains 
skill  and  dexterity  beyond  that  of  the  ordinary  lawyer.  This  is 
of  as  much  advantage  to  the  litigant  as  that  to  the  patient; 
and  of  as  much  advantage  to  the  Solicitor  whose  client  has 
been  taken  in  hand  by  the  Counsel,  as  that  of  the  general 
practitioner  whose  patient  has  been  taken  in  hand  by  the 
Specialist.  It  must  not  be  forgotten  that  a  trial  is  a  "major 
operation"  desiderating  skill  and  experience  at  the  best  of 
times  and  with  the  best  of  judges. 

As  a  consequence,  while  practically  every  lawyer  is  licensed 
to  conduct  his  own  cases  at  the  triad  and  in  appeal,  in  a 
large  percentage  of  cases  one  of  those  who  are  known  to  de- 
vote themselves  largely  to  Counsel  work  is  employed  on  those 
occasions.  Generally  the  solicitor  himself  will  take  part  as 
Junior  Counsel  in  his  capacity  as  Barrister.    There  is  noth- 


64 

ing  in  the  way  of  esprit  de  corps,  custom,  public  opinion,  etc., 
to  prevent  the  solicitor  taking  his  own  brief — and  many  do 
so — any  more  than  a  physician  is  prevented  from  operating 
on  his  own  patient — and  many  do. 

In  some  cases  the  client  himself  insists  on  counsel  being 
employed,  just  as  some  patients  and  their  friends  insist  on 
a  specialist  surgeon.  The  only  objection  I  ever  heard  to  this 
custom  is  the  fear  expressed  that  the  Counsel  will  steal  the 
client.  The  very  expression  of  such  a  fear  indicates  an  extra- 
ordinarily low  state  of  morals  in  the  profession  where  such  a 
fear  can  be  more  than  the  merest  illusion.  Any  one  who 
would  steal  a  client  would  steal  a  sheep  if  it  suited  his  purpose ; 
and  there  is  in  our  system  about  as  little  chance  of  the 
one  as  of  the  other.  I  have  never  heard  it  so  much  as  sug- 
gested that  any  Counsel  ever  stole  a  client  and  I  cannot  think 
that  such  a  thing  could  ever  take  place. 

The  Brief  is  brought  or  sent  to  Counsel  by  the  solicitor 
himself.  If  the  clienx  brings  it,  he  must  bring  either  the  so- 
licitor or  a  letter  from  him.  The  client  cannot  in  the  first 
instance  be  so  much  as  seen  without  the  solicitor's  consent, 
and  the  solicitor  is  always  kept  informed  of  everything  that 
is  being  done  with  or  for  his  client.  The  client  is  sent  back 
to  the  solicitor;  no  Counsel  would  directly  or  indirectly  ac- 
cept as  a  client  of  his  own,  one  sent  to  him  by  a  solicitor.  If 
any  counsel  were  even  to  come  under  suspicion  of  such  im- 
proper dealings,  his  practice  would  dwindle  to  the  vanishing 
point.  If  it  were  proved  against  him  he  should  be  suspended 
or  disbarred. 

Counsel  make  their  money  by  taking  cases  for  others ; 
prudent  regard  for  their  own  pockets  (if  no  higher  reason) 
would  keep  them  from  "filching  and  stealing." 

No  one  would,  if  he  had  to  frame  a  system  for  the  profes- 
sion de  novo  et  ab  origine,  think  of  making  a  formal  distinc- 
tion between  barrister  and  solicitor,  but  we  are  an  essentially 
practical  people;  we  care  nothing  for  logical  consistency;  if 
we  find  an  institution  work  reasonably  well  in  practice  we  do 
not  discard  it  because  it  seems  anomalous  in  theory.  We 
would  never  think  of  applying  to  the  Legislature  to  make  the 


G5 

distinction  if  none  existed  but  we  find  it  come  down  to  us 
from  the  past  as  an  existing  institution  and  we  find  it  does  no 
harm,  and  accordingly  we  retain  it. 

But  whatever  the  form,  there  must  always  be  in  fact  a 
marked  distinction  in  function.  There  must  always  be  in 
fact  abilities,  acquirements  which  tend  to  enhance  proficiency 
in  one  or  the  other  capacity,  and  often  the  acquirements  or 
abilities  most  useful  in  one  are  not  so  but  perhaps  rather  the 
reverse  in  the  other.  On  that  I  need  not  enlarge,  but  content 
myself  with  saying  that  nothing  but  good  can  be  the  result  of 
a  specialization  as  Counsel  of  a  sufficient  number  of  lawyers 
whose  talents  lie  in  that  direction,  and  the  liberal  employment 
of  these  by  practitioners  less  well  qualified  in  that  regard. 

In  conclusion  permit  me  to  say  how  glad  I  am  to  meet  the 
Society,  to  wish  it  a  long,  prosperous  and  useful  career  and 
to  add  that  I  shall  most  gladly  do  all  that  is  in  my  power  to 
further  its  objects  and  enhance  its  usefulness. 

William  Renwick  Riddell. 


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